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Why the government should "be in the marriage business"

The every-fourth-year-ly hoopla about a certain politician whose name rhymes with "Don Tall" has brought into view a slogan (perhaps I may say a "canard") which evidently is this politician's position--namely, that "government should get out of the marriage business."

As so often happens in political discourse, as long as this is a slogan, it sounds good (I guess, to some people) but is contentless, and political enthusiasts repeat it mindlessly. So let's try to get a bit clearer. What would it actually mean to "get the government out of the marriage business"? As far as I can see, if we want to be clear, we should say instead that someone who advocates this thinks that civil marriage should be abolished. That doesn't sound nearly so unthreatening. It sounds rather radical, in fact. That's because it is.

At the federal level, abolishing civil marriage would mean abolishing all manner of tax statuses and social security connections. "Married" would no longer be a category under which you would file taxes, and "your spouse who cares for your minor children" would no longer be able to get any of your social security benefits after you die.

Really, this entry would get too long if I tried to list all the common law implications of abolishing civil marriage. If a "spouse" with no civil status greater than that of a common-law spouse were treated in cases of intestacy exactly as a civil marital spouse is presently treated, then the court would merely be reinventing the notion of civil marriage (to all intents and purposes), which would mean that the government was "in the marriage business" after all. If we really tried to be consistent with the notion that the government isn't "in the marriage business," then presumably in cases of intestacy the spouse (where "spouse" could not even be defined and could be understood only in terms of a person with whom one had gone through some private ceremony, perhaps in a church) would not have any special claim on the deceased's earthly goods. What would the court do to reinvent the wheel? Oh, I dunno. Maybe automatically give all the worldly goods to blood kin, treating the common-law spouse as a mere friend. Maybe grudgingly treat the common-law spouse as kin but only on a par with blood kin. Who knows? It would be the wild West of common law, hundreds of years of common law having been shaken up by the abolition of legal marriage. And the same, mutatis mutandis, for hospital visitation, rights of guardianship in the case of an adult's incapacity, and...oh, yes, children.

Now, young men, I'm speaking to you. I'm especially speaking to young erstwhile conservative men who, for some reason, have started taking the above slogan seriously. Maybe you've done this because of an increasing enthusiasm for "Don Tall." Think with me, here. Imagine that you are married and have a child. If you are already married and have a child, that will be easy to do. Guess what? If government were to "get out of the marriage business"--that is, if civil marriage recognized by the government were abolished--you would have no more presumptive parental rights over your child than if you had gotten your girlfriend pregnant without bothering to marry her. If that doesn't concern you, it certainly should.

Right now, married fathers automatically have parental rights. They are presumed to be the father of the child. They don't have to adopt their own child (there's a concept for you!). They don't have to present DNA evidence to a court to establish parental rights. If a court wants to challenge your parental rights as a married father, the burden is on the court to terminate or undermine those rights. The burden of proof is not on you to establish that you have those rights. Things are quite different if you are a single father, though just how different seems to vary a bit from state to state.

What if your wife were to die? Would you automatically be the person raising your child as a widower? You would now, if you are civilly married. That's because government is "in the marriage business." If civil marriage were abolished and the government did not automatically recognize your parental rights as a married father, who knows?

In case you haven't noticed, single mothers tend to have more trouble with CPS and other intrusive government agencies. If you're a libertarian, you should be thinking very hard about the protection that the remnants of government recognition of the family afford for the privacy of citizens.

Any thinking person who knows anything about law ought to realize (as this blogger, with whom I would doubtless have many disagreements, points out) that it isn't actually practically possible for the government to "get out of the marriage business." It's a fuzzy libertarian dream without any clear meaning. If civil marriage did not exist, the courts would have to invent it.

But as usual, some of libertarianism's worst problems arise when we start even thinking about children, and it's at that point that "the government should get out of the marriage business" becomes a true nightmare. (Well, if it weren't a nightmare enough to imagine yourself blocked from decision-making about the care of your dying wife because you're "just a friend" who only married her in a "purely religious" service.)

Can we scrap this slogan? Oh, and while we're at it, let's please, please scrap a similar idea that I've run into from one conservative or another suggesting that conservatives should "boycott" civil marriage. Do that, and you'll lose some of the few rights and freedoms you currently have left for your family. So don't do that.

The government should stay in the marriage business. Which makes it all the more important for conservatives not to sidestep the defense of marriage. He that hath ears to hear, let him hear.

Comments (136)

Excellent, Lydia, and thank you. It's amazing what we take for granted these days. And if there is any lesson to be learned in the last 25 years, it is that nothing can be taken for granted in the brave new USofA - politically speaking.

What is usually meant is that the word would go to churches and civil unions would become the entrance to civil law. Both might be required or it could be set up in other ways. The state can't get out of the "marriage business" except in name only.

Thank you. Can I make a contribution to you for accidentally taking all of my Facebook arguments, scattered across the pages of "Don Tall" followers, and nicely rolling them into one coherent post? I haven't been able to get anything done in my house because of this battle.

I'm going to post this on Facebook and hope that my blood pressure goes down.

Al, I don't think that's what the followers of the politician named in my post think they mean. After all, as you point out, that would be in name only, so why would it be important to them to do it? It's difficult to imagine that someone who was really passionate about this as some sort of matter of libertarian principle would really mean only that we should change the name of civil marriage.

There are inevitably going to be points of tension between libertarians like "Don Tall," and paleoconservatives like myself, his half-baked stance on marriage being one of them. However, all things considered, I count myself a "Don Tall" supporter for his positions on the economy and on foreign policy, since in those important spheres he strikes me as the only candidate who is sane.

What is usually meant is that the word would go to churches and civil unions would become the entrance to civil law. Both might be required or it could be set up in other ways. The state can't get out of the "marriage business" except in name only.

Al, I don't think that's what the followers of the politician named in my post think they mean. After all, as you point out, that would be in name only, so why would it be important to them to do it? It's difficult to imagine that someone who was really passionate about this as some sort of matter of libertarian principle would really mean only that we should change the name of civil marriage.

Al appears to be describing the situation that prevails in many continental countries (which have, for reasons that I neither know nor understand, emulated Bismark's policy in Prussia). There, religious ministers are not authorized to observe civil marriages. The state defines certain criteria for marriage, and people who wish to be afforded the civil rights and statuses defined by the law must---whatever else they choose to do---go and sign a book or prattle some words before a magistrate. In the United States, of course, a couple can have a religious minister sign their marriage license.

This approach to wedding ceremonies has inauspicious origins, and it wholly fails---as Lydia points out---to address any of the actual issues that Don Tall is attempting to address (or, as the case may be, avoid).

Titus, in those continental countries, don't they have the same name for the civil and religious status, though? Perhaps just with some word like "civil" added as a qualifier? "Civil marriage" vs. "religious marriage." What Al seems to be describing would be a deliberate use of an entirely different name for the two statuses. Now, I can imagine why a _liberal_ might want to change the name of civil marriage to "civil unions," but those reasons would be entirely cultural in nature and would have nothing genuine to do with having the government do less. They would be reasons such as abolishing the distinction in a state like Vermont between legal marriage and legal civil unions--that is, putting heterosexual legally recognized couples on a par with homosexual legally recognized couples. The point I would make there is that such a reason is in no way a distinctively libertarian reason, as opposed to a culturally liberal reason. It doesn't make the government less involved. Yet I see some young conservatives adopting this phrase--"the government should get out of the marriage business"--when I'm _quite sure_ they have no such agenda. So they must think this is some kind of "downsizing government" idea, and in that case, the only meaning I can give to it is the more radical one--namely, the _abolition_ of any legally recognized marriage or marriage-like state.

If the government stopped recognizing 'marriage' and instead started recognizing 'civil unions', it (and the body politic) would have to spend billions of man-hours hashing out the limits of who can, and who cannot, enter into this newly created concept of 'civil union'. Can a man and three business partners form such a union? Can a circus entertainer and his horse become a civil union? Can a woman and her family limited partnership form one? Why or why not? Why should we limit it to X groups and not Y groups? What features of legal advantage do we want to grant to the new status? Taxes and child custody are just 2 out of hundreds of possible legal benefits. If we want to permit 'civil unions' for people whose relationship (business, hobby, pen-pal, vendetta, whatever) has no bearing on children, why would we formulate the "rights and privileges" of the status to be a set of rights that bear on children? Just for example.

Or, (on the other hand), if 'civil union' is just to take over the already long-hashed-out plan for legal benefits for marriage, then it really is just the government staying in the marriage business after all, but with the government formally repudiating the cultural meaning of marriage for a newly invented meaning that includes some of the old fringe elements. This purpose would have to be viewed as highly factional, highly debatable, and extremely radical.

I propose that we already have civil unions, they are also called partnerships, corporations, companies, universities, leagues, churches, associations, and a hundred more. These are all civilly recognized, they are all ways people form unions, we don't need to group them all together under the term 'civil union', and we don't need to create more government bureaucracy. Let's just leave our unions the way they are.

Peter X, of course. Civil marriage, inter alia, is governmental granting of special status for and special recognition of a relationship. The question in the debate with homosexual activists should thus be framed as, "Should the government give this special recognition and special status to anything other than a union of one man and one woman?" To my mind that is _always_ how the debate should have been framed, *as opposed to* "Should homosexual couples be allowed to get married?" The "allowed" word takes the emphasis entirely off what is really being proposed--namely, that the government grant some status and special recognition to the relationship, rather than that two people be allowed to undertake some action as individuals. (As if we were asking, "Should people be allowed to walk their dogs in this field?" Or "Should I be allowed to park my car in this zone?") "Discrimination" is inherent in the very fact that this is special status which will always be granted to some human relationships and not to others. Once we get the special status fact front and center, I think a lot of cant can be cleared away.

My post is directed toward a small number of fellow conservatives of libertarian leaning who somehow seem to think that the argument over the definition of civil marriage can be avoided or evaded simply by a slogan to the effect that "the government should get out of the marriage business." No such evasion is possible. Another audience is an equally small number of conservatives who propose that we could just drop our own attempt to acquire legal marriage and "boycott" the institution as a protest against the devaluation of civil marriage by the secular state (e.g., if that legal status is also granted by the state to homosexual couples).

I'm not sure why it's implausible that conservatives would get worked up about a matter of nomenclature; no one thinks the existence pro-same-sex-marriage liberals in states that already have strong civil unions calls out for an explanation. Admittedly, the slogan ("get government out of the marriage business") is phrased in superficially libertarian terms, but I don't think too much should be read into that, especially since many liberals, like Kinky Friedman, use similar phraseology.

Its popularity among some young conservatives seems to stem from a simple recognition that the political debate has shifted to being between civil unions and same-sex marriage, rather than between same-sex marriage and no recognition at all for (notionally) monogamous gay relationships.

No, I really don't think erstwhile social conservatives would use such a phrase to mean, "I now endorse civil unions." For one thing, it would be a lot simpler and clearer to say, "I now endorse civil unions." For another thing, there's baggage to this that doesn't seem to amount simply to an endorsement of civil unions--for example, the emphatic claim that marriage should "go back to the church" or some such phrase. For a third thing, only someone who was not really all that socially conservative would endorse civil unions anyway, and for someone who was previously strongly anti- the whole homosexual agenda to endorse civil unions would definitely be a move to the left on that axis. The way I've seen this phrase used, it doesn't seem to be intended to signal that the person is moving to the left and now wants to endorse some sort of equality between homosexual and heterosexual unions which he previously rejected.

I honestly think some people are getting the weird idea that this strange phrase allows them to avoid the entire issue of homosexual "marriage." I think Don Tall himself probably thinks it's a very clever move of his in that direction.

But it can only serve that function thoroughly if it is the truly radical proposal of _abolishing_ civil marriage (which isn't legally possible). If it's really instead a disguised endorsement of civil unions, then that's a bait and switch and is deceptive, making it sound like the candidate is remaining neutral on the culture-war issues between so-cons and the homosexual lobby when actually he is not.

Oh please, all these "awful" problems caused by government getting out of the marriage business, can be solved by a simple contract signed and witnessed at the ceremony. That sure beats this [ed. for obscenity, LM] of government agencies and bureaucracy that we have now. Sure some issues will go to the courts or more likely arbitrators. So what, libertarians are not against governance, only government. If you don't know the difference, you should look it up.

Also, as far as the tax exempt status. Ron Paul would be happy to extend that to everybody. Because the government takes wealth when they take taxes, it is not a zero sum game. A government taking less from somebody over there does not translate to the government taking more from somebody over here.

Finally, think about it this way. If the government is kicked out of the institution of marriage, that will send it back to private organizations. And the most largest private organizations in this area are THE CHURCHES. As in, the legitimacy of marriage will finally and once again be the domain of the religious community, and without the tax benefits, most gays probably won't care about the religious aspect of it.

The churches have been bitching and moaning non stop about how the sanctity of marriage is being eroded for the last 60 years. Well, here's your chance to shut up and do something about it. So please, shut up and do something about it.

Lydia, Don Tall speaks and thinks only in slogans. If you're going to argue against a proposition, why not argue against a thoughtful presentation of it? I mean, even if most of the chatter you hear is just Don Tall sloganizing?

Austin Bramwell, who's a conservative, a lawyer, and unlike Don Tall, is not a kook, has also made a case for privatizing marriage. The basis of his proposal is to "unbundle the concept of marriage" (you call yourself "a splitter, not a lumper," right?).

I wasn't convinced at the time, and I haven't re-read it now (it's kind of long). Still, if you want to argue against the "privatize marriage" position, it might be interesting to argue against one of its intelligent proponents rather than against Don Tall.

To clarify the above, I meant that Bramwell says that marriage is, juridically speaking, already a bundle of concepts, like property for instance. He wants to analyze the elements of that bundle in turn. That is, to view the juridical concept of marriage, correctly, as a bundle of concepts, which it already is.

If we believe that marriage is a sacrament, then truly, what business does the state have in administering the sacrament?
Marriage in the Church and civil marriage are not the same thing and should not be thought of as such. I believe that because people have viewed the two as related, people have developed notions of marriage that they never should have. This is especially true for heterosexual couples who don't hold the view that marriage is a sacrament and instead believe marriage to be a sort of official lover's union or some sort of tax-convenient, sex and children contract, although, they probably would never use those words.

The arguments in this article and in the comments seem to revolve around two things: inconvenience and fear. "Abolishing state marriage would be very inconvenient and impossible because of all the paperwork that would be involved." "If we abolish marriage, you should be scared because who knows what would happen to your children/tax rates/social security benefits/belongings if you were to die." With regards to the legal fear arguments, these things can be addressed with legal contracts. Also, fathers do have a right to their children even if they are born out of wedlock. With regards to the inconvenience arguments, I believe the benefits far outweigh the costs in this regard. Consider what would happen to people's concept of marriage if civil marriage was abolished. Those in civil marriages would realize that really all they had together was a contract and not a true marriage. There would no longer civil strife with homosexuals fighting for equal rights since the government cannot force a church to decide who it will marry.

In my mind, you should judge the goodness of a thing by its fruits, and the fruits of civil marriage have been all this current strife with homosexual marriage and more importantly, the loss of the sanctity of marriage in common belief. Abolishing civil marriage would fix the first problem and possibly help by changing people's mind with regards to the second problem.

The idea that we can solve (or at least manage) the controversy over same-sex pseudo-marriage (SSPM) by “getting the government out of the marriage business” is fundamentally misguided. For one thing, the ultimate impetus for SSPM (and its low-octane version, “civil union") is the desire of the homosexual activists for the full legal legitimization of homosexuality. That’s the real driving force behind the campaign for SSPM, even if many of those lower down the leftist chain of command are not aware of the real objective of their campaign. Therefore the Left will never be satisfied until the government formally declares same-sex pseudo-marriages to be marriages.

Also, if the government really did wash its hands of the whole matter, it would result in a swift victory for the homosexualists. Since the left controls almost all of the formal leadership positions and institutions within Western Civilization, the main thing preventing them from achieving the Final Solution of the Marriage Problem is the passing of various DOMA laws. A DOMA law is the government discharging its God-given mandate to oppose evildoers (those bent on forcing us to honor bent definitions of marriage and love.) It is not the government butting in where it doesn’t belong.

All this is a perfect illustration of why libertarianism overall (with exceptions noted) is on the side of the enemy: When the enemy controls most of the positions of leadership, then lassiez faire generally means refusing to fight evil.

Fair enough: the discrimination discussion is a different topic. But I would be interested to hear eventually how you think the framing of special status will actually clear up the issue. Particularly in a way that couldn't also have been used 50 years ago to justify a different kind of discrimination.

This bizarre refusal to use the name Ron Paul and instead repeatedly employ this irritating "rhymes with Don Tall" stand-in is SO irritating - and moronic and pointless - that it's hard to focus on your substantive points, such as they are! This is the first time I've been on this site so perhaps there's some understood, semi-sensible basis for it that I'm unaware of (and can't even imagine).....Had hoped to read a new insight on how to persuasively argue against redefining marriage to involve same sex pairs akin to male-female couples....Ron Paul often points out that marriages are licensed by the states-- not by the federal govt, and that is one reason why it's unsurprising to see him oppose amending the US Constitution to ban same-sex "marriage". I agree there are profound impracticalities to having same-sex "marriages" in some states and not in others and I don't see how the libertarian argument works with this issue when marriage has its tentacles far and deep within the structure of society and its laws, regulations, culture, tradition, religion, morality, etc. Something like murder laws -- which are also made on the state level -- don't, thankfully, affect or have any relevance whatsoever to most people...so having non-uniformity from state to state isn't of any impact except in rare, discrete cases. Though Ron Paul's thought carefully about many economic issues for many years, it appears he hasn't contemplated this issue and the deep and far-reaching implications of this expansion of marriage to same-sex pairs on a state by state basis (and he opposes a federal marriage amendment). My hope and hunch is that marriage redefinition can be stopped whether or not Ron Paul gets into the White House. Unfortunately, Mitt Romney supports same-sex pairs adopting children though not calling same-sex pairings "marriages", as per one headline I read yesterday. Same-sex pairs adopting children is just about the worst aspect of legalizing same-sex "marriages" in my book, not the mere calling these unions "marriages", sheez. Romney's right though that handing over that word, "marriage" DOES cause innumerable other changes that voters might not necessarily think of when arguing against marriage redefinition.

Now, young men, I'm speaking to you. I'm especially speaking to young erstwhile conservative men who, for some reason, have started taking the above slogan seriously. Maybe you've done this because of an increasing enthusiasm for "Don Tall." Think with me, here. Imagine that you are married and have a child. If you are already married and have a child, that will be easy to do. Guess what? If government were to "get out of the marriage business"--that is, if civil marriage recognized by the government were abolished--you would have no more presumptive parental rights over your child than if you had gotten your girlfriend pregnant without bothering to marry her. If that doesn't concern you, it certainly should.

Right now, married fathers automatically have parental rights. They are presumed to be the father of the child. They don't have to adopt their own child (there's a concept for you!). They don't have to present DNA evidence to a court to establish parental rights. If a court wants to challenge your parental rights as a married father, the burden is on the court to terminate or undermine those rights. The burden of proof is not on you to establish that you have those rights. Things are quite different if you are a single father, though just how different seems to vary a bit from state to state.

And your argument becomes completely null and void the moment you factor in the ease by which mainstream America and the law supports divorce. Completely. Married men have no discernible rights to their children under the law in most jurisdictions. They have only privileges granted to them by the state via their wife. They do, however, have duties should she decide to enforce them.

Until no fault divorce is completely scrapped, you have no argument here because it renders all male rights in marriage contingent upon their wife's feelings.

I would also point out that the flip side of assumed paternity is that any man who is cuckolded and whose wife becomes pregnant is in a guilty-until-proven-innocent state viz a viz his obligations to the child, and rarely is such a man blessed with his wife choosing a man of another race which makes arguing that it is his exceptionally difficult at birth.

David, whoever you are, wash your mouth out with soap or don't comment here again. We don't tolerate obscenity in comment, period. The rest of your comment drags down the level of discourse by its shallowness, so, since I have plenty of others to reply to, I'm going to ignore it for the nonce.

Patricia, see David's comment? Add in an obscenity and you'll know why I use the rhyme. When you use the name of that politician (I've experienced this, even on my usually obscure little personal blog), Google notifications (aka The Bots) bring the followers of that politician from all over the Web to rant on one's thread in juvenile fashion, and that's one case where not all publicity is good publicity. If you don't understand this, I can't help you.

By the way, if R.P. really understood the Constitution and really cared about marriage, he'd have no objection to amending the Constitution to define marriage as being between one man and one woman. People need to get this straight: There is no disrespect for the Constitution or Constitutional process involved in amending the Constitution. The disrespect comes in where the liberals cheat and get the effect of amendments, sometimes even _huge_ amendments, by judicial or congressional fiat, contrary to the actual meaning of the constitution, without bothering to amend it.

Aaron, I wrote out a response on Frum's "privatizing marriage" idea which was lost in a computer freeze, so this may be shorter.

Since you linked Frum, I read or skimmed all five parts of his series. I consider his proposal to be more wordy but not substantially deeper than the sloganeering I am addressing in the main post. By the time he gets to telling traditionalists that they should support the abolition of civil marriage (which is what his proposal amounts to), he has already said, dismissively and with little argument, that he considers the case "weak" for any governmental preference or recognition for monogamous heterosexual relationships. Since this is a pretty central point from the traditionalist perspective, it seriously undermines his argument. Moreover, he never addresses the issues I raise in the above post, such as presumptive paternity, intestacy, etc. Oddly, he points out in an early installment the huge number of places in which government recognition of marriage impinges on law. At that point in his argument he seems to be saying that it would be a bad idea to scrap all that law, but by the end of his series he is proposing exactly that with no explanation of how that will work, even practically speaking. In other words, he's just not significantly deeper than the sloganeers.

Several commentators, the hard-core libertarian types, have insisted (sometimes with sneers) that this can all be dealt with by contract. Really? It's not just a private contract for a man to have parental rights over his child. The state either _assumes_ those or _grants_ those.

It is my contention--and frankly, any sane conservative ought to be able to see this--that it is a *very bad idea* for the parental rights of a married father to have to be *granted* by the state ab initio even though he was married to the child's mother at the time of birth. A very bad idea indeed. The family should be a prima facie recognized institution, and parental rights should be respected by government. Married fathers should not, en masse, have to go to courts in order to _receive_ recognition of their parenthood. Indeed, of all people, libertarians should be able to understand what a fundamental and earth-shaking difference this makes. It moves us a pretty large step further in the direction of parent licensing, a project the left has had at heart for a long time and that anyone who cares about human freedom in the United States should care about.

Mike T., your argument is extremely poor. So, paternal rights are under threat from no-fault divorce, so we should make *all* fathers' paternal rights a creature of the state, not assumed but only granted? Talk about a dog in the manger attitude. You know the old story about Peter, the Communist peasant? He found a bottle. A genie came out and offered to grant a wish. Peter went into a long complaint about how upset he was that his neighbor had a goat and that he didn't. The genie said, "Oh, so you want me to give you a goat, right?" "No!" said Peter. "I want Ivan's goat to die."

That's what your argument is like. It's hitting marriage while it's down. If divorced fathers can have their paternal rights messed up by their wives, _all_ fathers should be treated from the outset just like unmarried fathers? That's not a good argument. Please remember that this would make a difference to those married fathers, for example, in situations where they had to make healthcare decisions about a child. We don't want fathers to be second-class parents. You may say they already are to some extent because of divorce law and judicial bias for mothers in divorces. Well, that issue should be addressed on its own, but we hardly solve it by spreading the problem to non-divorced fathers and officially de-recognizing them.

Oh, by the way, one uninformed commentator above (I believe it was Edgar) stated that single fathers also have paternal rights. That is true, but state law makes a distinction. The paternal rights of an unmarried father are not presumptive, as they are for the married father.

Back to Mike T.--Yes, presumptive paternity does raise the possibility of a "cuckoo in the nest," as it used to be called. I consider this possibility a small price to pay for the government-recognized unity of the family, which is something that used to be considered important in public policy. We should not allow the dysfunctional situation to become the presumptive norm and to drag down the recognition of the good and normal situation.

The the sole justification and only purpose of government is to promote the common good. If marriage is not among those goods that any legitimate government is obligated to support and defend then nothing is. R.P. is right about somethings, but his judgment here is sadly lacking.

Aaron, on "lumping" and "splitting," probably I don't have to say this, but perhaps I do for the sake of clarity: Splitting is very useful analytically, but it hardly follows that

a) there are no "lumps" (as in the case of social institutions with various aspects) that are important,

or

b) that all "lumps" should be split up in law and in social policy.

Not by a long chalk. Parental rights are a "lump." They involve a variety of different powers of parents bundled together. It doesn't follow that there's no good point to bundling these or that the bundle should be scattered to the winds, with government taking over some, some being stripped from parents and given to no one, and others being retained by parents. Similarly, the fact that civil marriage comprises different rights, privileges, and legal aspects does not mean that it would be in any way a good idea to split these up in public policy.

The thing is, I'm addressing conservatives here. Conservatives supposedly believe in defending marriage. I want to debunk, for conservatives, the idea that one can defend marriage by abolishing civil marriage! This should go without saying but evidently it doesn't, and some libertarians are spinning out pseudo-arguments that seem to be taking some people in.

My understanding is the same as al's. The point is not to abolish all of the listed associations, but rather to get government out of the business of defining what marriage is and is not, which is what is creating our present issue. We would go to a system of civil union open to whomever the state wants and marriage which is administered by another "estate" if you will, almost certainly the church.

The hard truth is that, at this point, we either do something like this or just have gay marriage period. Unfortunately, there is zero support for this idea, neither from winner-take-all conservatives or homosexualists who actually care more about re-norming marriage than any of the tangible benefits thereof. So gay marriage we will have.

Which leads to the other hard truth--most young people don't care. It's all a latter day battle in the fading culture war.

We would go to a system of civil union open to whomever the state wants

So we change the name, but the state still has to determine who belongs in these unions.

That's not the state getting out of the marriage business. It has two effects, which are related:

1) It changes the name of civil marriage, which maybe makes some people feel better for some reasons,

2) Since presumably homosexual couples would be included in this new system (if they weren't, we wouldn't be "doing" anything, would we?) it puts all homosexual couples and heterosexual couples on a par by giving their unions the same name, which is a change in the direction of so-called "marriage equality" (hence, a gain for the homosexual lobby) even in states that presently have civil unions separate from marriage. In other words, in those states, it eliminates even the verbal status, which homosexual lobbyists oppose as a preference in labeling, given to heterosexual couples.

Moreover, as you point out, Matt, the state still has to decide who's included (e.g., not Joe and his dog, not Joe and his brother, but presumably yes Joe and his homosexual partner), so it would still have the marriage "in the business" of preferring some relationships over others by giving them special recognition.

Whatever else can be said about this, conservatives, actual conservatives, should oppose this.

And IMO it is _highly_ misleading to refer to such a plan by the slogan discussed in the main post.

As you can see from the Frum posts that Aaron linked, however, there are people who seriously propose abolishing the institution of civil marriage, apparently under any name.

Mike T., your argument is extremely poor. So, paternal rights are under threat from no-fault divorce, so we should make *all* fathers' paternal rights a creature of the state, not assumed but only granted? Talk about a dog in the manger attitude. You know the old story about Peter, the Communist peasant? He found a bottle. A genie came out and offered to grant a wish. Peter went into a long complaint about how upset he was that his neighbor had a goat and that he didn't. The genie said, "Oh, so you want me to give you a goat, right?" "No!" said Peter. "I want Ivan's goat to die."

That's what your argument is like. It's hitting marriage while it's down. If divorced fathers can have their paternal rights messed up by their wives, _all_ fathers should be treated from the outset just like unmarried fathers? That's not a good argument. Please remember that this would make a difference to those married fathers, for example, in situations where they had to make healthcare decisions about a child. We don't want fathers to be second-class parents. You may say they already are to some extent because of divorce law and judicial bias for mothers in divorces. Well, that issue should be addressed on its own, but we hardly solve it by spreading the problem to non-divorced fathers and officially de-recognizing them.

You missed my point. I am calling you naive for calling them "rights" rather than privileges since those "rights" can be abolished formally or functionally by the mother withdrawing her consent to stay married--which can be made on a whim thanks to no fault divorce. Anything contingent upon the whim of another is not a right, it's nothing more than a privilege and God help the poor sap who treats his divorcing wife differently when she has the state inform him of his change of status. He better know his place.

What we have today isn't worth defending as an institution. It bears no historic resemblance to the institution formally known as marriage and the culture militates against the restoration of marriage as it was known in the West for the last few millennia prior to the 1960s.

You could, of course, redress part of this situation by abolishing all rights that unwed mothers have to financial support from the fathers of their children. I don't see how a conservative can support a distinction between paternal rights due to marital status, but believe child support is a right all mothers have as a matter of justice. For most of Christianity's existence, most Christians rejected that notion.

But it wouldn't be just a simple name change, as if we were to change the name of 'civil union' to 'civil partnership', two abstract neologisms which mean nothing outside of their present referent. The word 'marriage' is rooted in a tradition, and grants a special status to its referent, so it would have the effect of removing the state's discretion from who is and who isn't married. That's pretty big. It would take a couple of generations to play out fully, but anyone born after say 2001 or so would hardly remember a world where the government had any role in saying who was married and who was not. It's a straightforward loss of power and influence for the state (and the various leeches that have attached themselves to it), which is assuredly why it will never actually happen.

The word 'marriage' is rooted in a tradition, and grants a special status to its referent, so it would have the effect of removing the state's discretion from who is and who isn't married.

Don't forget...

1. The state's discretion over when it ends.
2. The state's discretion over who can be an agent to facilitate it.
3. The state's discretion over the wealth distribution within the family.

The single biggest reason why marriage is collapsing is because of #1. Men have no real incentive today to get married except religion or blind allegiance to tradition they barely understand. Since about 70-75% of all divorces are initiated by women, and no-fault divorce made divorce possible on a whim, every argument about the security of men in marriage as a reason to enter into it is null and void.

Abolishing the state's control over marriage wouldn't solve all of the issues, but at this point, what the state licenses and regulates is not marriage in any sense that is recognizable to Christians. It's already a de jure civil union masquerading as marriage because it is as easy to shred (and everything that comes with it from property to family structure) as a contract.

We're only kidding ourselves if we think that America can be saved without it tasting the fruit of the direction its headed. Our country, I think, needs to descend into madness before it can have a hope of ascending back to reason.

How does making the rights of marriage a creature of contract law destroy the presumption of paternity? The presumption could simply be written into the contract, placing the burden on the paternity challenger to show that he's the biological father. As far as I can tell, almost all the elements of paternity presumption laws could be done through contract.

So, Mike T, your recommendation is that we pursue madness, in order that reason and justice might come of it?

We've already embraced madness and injustice on some levels. Even most social conservatives are fairly blind to it. Heck, Lydia tried to make an appeal to young husbands and fathers based on a legal regime that doesn't even exist in the real world; the reality being that most married fathers derive their "security" entirely from their wife's continued consent.

As I said, what we have today in the law is not marriage as most Americans would have recognized it even in 1950, let alone 1900 or 1776. It's already a civil union system masquerading as marriage.

As far as I can tell, almost all the elements of paternity presumption laws could be done through contract.

Indeed, but if done through contract law and judges were crippled in their power to declare such contracts unconscionable, men would have a lot more freedom to defend themselves from paternity fraud. For example, it could be written into the contract that the wife not only loses her share of the family property, but also custody of all of her other children with her husband. The equivalent could also be done if the man cheats.

Done properly, marriage contracts would permit substantially more conservative marriage arrangements with the force of law than probably even most social conservatives want.

Currently, your only remedies are whatever the law says. A judge can easily rip up a prenuptial agreement in many areas.

A relative of mine, when getting divorced, was told by the judge "don't even bother trying to argue adultery because I won't hear the evidence." That's a microcosm of what American men often face from the state over marriage.

Lydia, I thought that piece on Frum Forum is actually pretty good. (By the way, it's actually by Austin Bramwell, not Frum himself.) Contrary to your suggestion above, Bramwell doesn't advocate that all laws relating to the status of married people be abolished; he just points out that many of those laws (the right to file joint returns, qualifying for a deceased spouse's social security benefits, etc.) were created for instrumental reasons, and not to support marriage or lend it some sort of special cachet. (In fact, he points out that some of them disadvantage marriage.) In situations where those reasons would apply to non-monogamous non-heterosexual relationships, it makes sense to extend those laws to those groups; in situations where those reasons would only apply to heterosexual couples (maybe the presumption of paternity would fit here), the law could be kept unchanged; in situations where the laws don't even make sense for heterosexual couples (e.g., losing the ability to designate retirement benefits beneficiaries) they should be abolished for everyone. His point is simply that each of the laws should be examined individually.

Intestacy would probably fit under what Bramwell calls "private marriage," since it can already be modified by contract. His only proposal here is to improve the default rules (e.g., the rules that apply if the contract doesn't mention the disposition of property for an intestate party).

Finally, I think you're just misreading him when you write that "he considers the case 'weak' for any governmental preference or recognition for monogamous heterosexual relationships." The line you're referring to is referring to the arguments of same-sex marriage advocates; he's saying that the case for drawing the line at two adults (as opposed to polygamous marriages or more outlandish versions) is weak:

Even if we do make that assumption, the arguments in favor of the view that lifelong unions between two adults deserve special government recognition are weak. Typically, the argument begins with the observation that some people are born with a set of sexual and romantic desires that make it impossible for them to find fulfillment except in a lifelong union with another adult. Well, others are doubtless born with very different sexual and romantic desires. Some may only be able to find fulfillment in polyamorous relationships. A small number are actually born sexually attracted to themselves. To be sure, very few people actually want to marry themselves. But it is equally true that relatively few actually want to marry someone of the same sex. At the very least, the arguments in favor of adopting a “comprehensive conception of good” that favors lifelong monogamy between two adults are no stronger than the arguments in favor of traditional heterosexual marriage. The movement for government-recognized same sex marriage is more powerful than it is persuasive.

The argument he directs at proponents of traditional marriage is mainly political: the alternative to his proposal is full same-sex marriage.

So now I take you to be saying that social conservatives who want to shore up marriage need to focus on curtailing liberal divorce laws in addition to opposing gay marriage. Is that about right, Mike T?

I still don't see how it follows that "the government should get out of the marriage business" is a slogan worth a darn. It would seem that the better slogan would be "no-fault divorce is a disaster; end it."

"You could, of course, redress part of this situation by abolishing all rights that unwed mothers have to financial support from the fathers of their children...For most of Christianity's existence, most Christians rejected that notion."

Which incentivizes abortion, infanticide, abandonment, and male irresponsibility. You play, you pay; seems simple to me.

I was speculating, not endorsing. RP's positions are a mishmash of libertarian and socially conservative views combined with economic nonsense and some good foreign policy ideas.

Same sex marriage is an Equal Protection situation and that's enough for me and most other folks too, it seems.

Heck, Lydia tried to make an appeal to young husbands and fathers based on a legal regime that doesn't even exist in the real world; the reality being that most married fathers derive their "security" entirely from their wife's continued consent.

Mike, you are just wrong. That is because you are constantly thinking of the dysfunctional situation. I'm thinking of the functional situation. In the functional situation, the young husbands and fathers definitely do live within the legal regime I described. If, for example, wife and child are both grievously hurt in a car accident, the husband and father has presumptive ability to order their medical care. If he takes the child on a trip with him, he is presumed by the law not to be kidnapping the child. If his wife dies, he's just the father and goes on raising the child, because his parental rights are already enshrined in law. If his child needs permission for some school activity, he has authority to give it. And so on and so on and so on. This is the real situation. That real legal situation doesn't disappear because it is *also* the case that brutal no-fault divorce is a possibility. In the functional marital union, everybody else has to recognize the father's parental rights. If the state wants to end those rights because, I dunno, they don't like the father's religion, they have to go through a process to terminate paternal rights that exist ab initio.

I strongly reject the statement that I was appealing to something that does not exist. The legal realities I mentioned are truly there. They do not have to be established in the way that a man has to establish paternity if he is not married to the mother. Your bitterness about no-fault divorce is simply blinding you.

How does making the rights of marriage a creature of contract law destroy the presumption of paternity? The presumption could simply be written into the contract, placing the burden on the paternity challenger to show that he's the biological father. As far as I can tell, almost all the elements of paternity presumption laws could be done through contract.

Maybe, maybe not. The courts would have to agree to honor that contract, and some such contracts would be highly problematic. What if it were a contract among fourteen people of different genders, for instance? No court should try to grant some kind of equal custody rights to all of fourteen adults over all children born to any woman in the group. So the state would have to decide what contracts actually conferred real parental rights for children born subsequent to the contract.

The very creativity of contracts would throw paternal rights into question. "I have a contract with this woman" might or might not mean that you had presumptive paternity over her children. This creates a situation of confusion and chaos for schools, hospitals, doctors, child protective services, and all the other people who deal with family situations and parental rights. There would no longer be any clear idea that this person definitely has the rights of a father because he was presumed to be the biological father, married to the child's mother. In other words, it would further destroy the concept of _family_ in society at large.

Conservatives should oppose that with all their might.

Moreover, if some couple did a church wedding but did not want to involve the state at all (because they had been taught that "the state should be out of the marriage business") and hence did not have lawyers help them to write up a legally clear and binding contract, and if there were no such thing as civilly recognized marriage, then in law the young husband would be on a par with a live-in boyfriend.

in situations where those reasons would only apply to heterosexual couples (maybe the presumption of paternity would fit here), the law could be kept unchanged;

What does that even mean? Does it mean that the state _does_ recognize marriage? So marriage _isn't_ privatized? They'd have to do that in order to have a presumption of paternity for *married fathers*. This is really pretty simple as it presently stands, but Bramwell is just _trying_ to create chaos by taking all the different aspects of civil marriage and tearing them apart from one another.

Intestacy would probably fit under what Bramwell calls "private marriage," since it can already be modified by contract. His only proposal here is to improve the default rules (e.g., the rules that apply if the contract doesn't mention the disposition of property for an intestate party).

What does that even mean? Again (again, again): Presently civil marriage automatically _encompasses_ those presumptions in the case of intestacy. The very fact that we don't each have to reinvent the wheel is part of what makes marriage such an important civil and societal institution. See, John, some of us think it should stay that way, not be degraded into a riot of separate, unique "contracts.

he's saying that the case for drawing the line at two adults (as opposed to polygamous marriages or more outlandish versions) is weak:

Traditionalists will disagree with this no less strongly (indeed, probably more strongly) than advocates of homosexual "marriage." Regardless of whom he was addressing in the immediate context, the statement is a seriously false one from the traditional perspective. Here is his statement:

Even if we do make that assumption, the arguments in favor of the view that lifelong unions between two adults deserve special government recognition are weak.

Baaad news, from a conservative perspective. See, I think the arguments in favor of the view that lifelong unions between two adults deserve special government recognition are _strong_. Moreover, those two adults had better be one man and one woman. But, yes, they should be two adults (not more) making a promise of lifelong union. Yep, that deserves special government recognition. Since he thinks otherwise, he doesn't have much credibility with me as a person who has a clue about what is best for the common good in terms of marriage law in the United States. It's really that simple.

By the way, if R.P. really understood the Constitution and really cared about marriage, he'd have no objection to amending the Constitution to define marriage as being between one man and one woman.

Unless he disagreed with the Incorporation Doctrine and about 120 years of legal precedent holding that the 14th Amendment applies the Federal Bill of Rights to the States. In which case he might worry that after the federal government had this power and laid down the law in our favor, it might nevertheless turn around later and hold that anything goes. And then where would we be? You wanted a King, you got him, so to speak.

Of course I agree there has to be some government and it has to be involved in marriage for the many reasons cited above, like legitimacy of children, inheritance, etc. etc.

The only question seems to be: which state? Or rather, which level of government? State as in New York or Georgia or whatever? County? City? Or the Federal government?

Per subsidiarity, one might want to keep it governed or ruled at the State level rather than at and by the federal level. At least if it was State by State you (a) could have more of an influence (proportionally) or (b) move or (c) both.

The argument is that, with due respect to those in favor of a Constitutional Amendment based on valid concerns about where this whole nation is going, the cure might nonetheless be worse than the disease.

The courts would have to agree to honor that contract, and some such contracts would be highly problematic. What if it were a contract among fourteen people of different genders, for instance? No court should try to grant some kind of equal custody rights to all of fourteen adults over all children born to any woman in the group.

This is shifting from paternity to custody. Custody is already a fact-specific determination where courts get heavily involved. The presumption of paternity doesn't create a presumption of custody.

What would the presumption be in the case of a contract among fourteen parties of different genders? Presumably, whatever the contract specified: either no presumption at all, or a presumption in favor of one of the parties specified in the contract. In either case, it doesn't change the fact that the people you were addressing in your post -- conservative men in heterosexual, monogamous, marriages -- could maintain the presumption of paternity.

As for the unfortunate couple who doesn't sign a civil contract, there are a variety of ways to deal with them, paralleling the ways the law already addresses people who think they're married without observing the necessary formalities. You could say their reliance on the assumption that they were married could create an equitable marriage, or you could say they're out of luck. Someone mentioned civil law countries above; they somehow manage to deal with all the people who get married in church without signing up for a civil marriage.

What does that even mean? Does it mean that the state _does_ recognize marriage? So marriage _isn't_ privatized? They'd have to do that in order to have a presumption of paternity for *married fathers*.

It means that the state privatizes parts of (what is now) marriage and doesn't privatize others, obviously. The point was that Bramwell never says that all the ways in which government is involved in marriage should be privatized or extended to same-sex couples. His argument is totally consistent with preserving the presumption of paternity for monogamous heterosexual couples.

As for the sentence you quote, sloppy phrasing aside, I think it's pretty clear from the context (which I quoted) what Bramwell's trying to say:

For marriage traditionalists, only a lifelong union between a man and a woman deserves to be called a marriage. For same sex marriage advocates, only a lifelong union between two adults deserves to be called marriage. ... Even if we do make that assumption, the arguments in favor of the view that lifelong unions between two adults deserve special government recognition are weak.

I'm don't know what Bramwell thinks about the view that lifelong unions between a man and a woman deserve special recognition -- he doesn't address it in this piece -- but given his other writings and the nature of the arguments he makes in Part 5, I'm inclined to think he's sympathetic.

What would the presumption be in the case of a contract among fourteen parties of different genders? Presumably, whatever the contract specified:

Well, frankly, that's ridiculous. You can't simply by contract grant actual parental rights to fourteen different adults for a single child, even if that were what a contract specified. And hopefully no government entity, were it called upon to rule in any given case about whether all fourteen of those adults really had parental rights, would actually grant that they all had equal parental rights.

As for the unfortunate couple who doesn't sign a civil contract, there are a variety of ways to deal with them, paralleling the ways the law already addresses people who think they're married without observing the necessary formalities. You could say their reliance on the assumption that they were married could create an equitable marriage, or you could say they're out of luck.

So in other words, either you re-create the wheel with a contract which you _hope_ actually establishes the father's rights to his own children in a way that the government would recognize (if, say, the government wanted to terminate them for some reason of its own), a contract that many couples may understandably find distasteful to make, smacking as it does of prenuptial agreements and of a degrading of marriage to the state of a pure, invented contract, or else you're in total limbo.

And a conservative is supposed to _want_ to throw everything into that kind of disarray? I mean, that's just crazy. No conservative should want that or agree with that proposal.

I'm inclined to think he's sympathetic.

You're inclined to think he's sympathetic, except that he's proposing *doing away with* that special recognition by the government! At that point, I couldn't care less what private sympathies he retains. His proposals are bad ones. For marriage.

You can't simply by contract grant actual parental rights to fourteen different adults for a single child, even if that were what a contract specified.

As I pointed out in my last post, it's the presumption of paternity (which was the example used in your initial post) can be replicated through contract, not "parental rights" or custody. (I never mentioned either.) Custody is already determined by courts, and not presumed, in the actual existing legal system we have today.

You're inclined to think he's sympathetic, except that he's proposing *doing away with* that special recognition by the government!

Actually, he's suggesting that much of marriage law isn't meant to grant "special recognition" to marriage; some of it actually disfavors married couples. Some of it is a practical accommodation of the needs of heterosexual couples, some of it is would be a practical accommodation of the needs of couples or groups in general, and some of it is simply obsolete. He gives several interesting examples.

Presumption of paternity definitely has relevance to parental rights, as many a legal fuss shows. Indeed, there are plenty of agitating groups that are annoyed about this very thing, because their constituency consists of unmarried fathers who, for example, don't want their girlfriends to be able to place a child for adoption without their permission and so forth. If you think these are not related, you are just wrong. Moreover, parental rights are related to all manner of things--controlling the child's medical care, giving permission at school for the child to go on certain activities, being able to _deny_ a school permission for the child to be in certain classes, having the right to home school, and so on and so on and so on. In my state, the home schooling law expressly states that the bulk of the child's education must be done by a "parent or guardian" in order to claim exemption from compulsory attendance laws. This makes the definition of a "parent or guardian" important to the question of whether you can be charged under truancy laws by the state educational establishment. Hence, a father's having parental rights--being defined automatically and presumptively as a "parent" under law--is immediately relevant to his right to educate his child. There are tons of such examples that could be given. These are just a few. Presumption of paternity is _directly_ related to parental rights. This just goes to show the difficulty of literally creating such a legal beast by private contract, which private contract could be among any number of people bearing any number and type of actual relationship(s) to the child in question. Frankly, the government should _not_ allow legal parental status to be established in such a...creative fashion. It should retain presumed paternity of a married father instead.

In short, as things presently stand, the married father and mother both have custody of the child from the time the child is born, unless the state finds some way to _terminate_ those parental rights which, to begin with, existed. We should keep it that way. To separate the presumed paternity of the married father from initial, presumptive custody is folly, and indeed, makes no legal sense.

How does making the rights of marriage a creature of contract law destroy the presumption of paternity? The presumption could simply be written into the contract,

We seem to have forgotten a big, important, foundational point: the state doesn't create marriage nor the rights of marriage, the state finds marriage to exist, and (some of) the rights exist, and the state merely recognizes them in its codification. The social reality of marriage (by way of tradition and culture) preceded the existence of the state in time, and it precedes the writ of authority of the state in both logical order and in causal order. The state has original authority over some of the fringe benefits of marriage because those fringe benefits are of the state's creation to begin with, but the state does not have original authority over all of the aspects of, rights, and privileges of marriage.

Paternity is one of those aspects of marriage that lies deeper down in social reality than does the state. The state can speak to special circumstances, like sorting out problems when paternity is uncertain, but the original meaning, force, and rights of paternity don't depend on statutory writ to exist.

For those who would claim the right of the state to formulate and prescribe all such marital rights as being "creatures of the state", be careful what you are asking for. Once you ditch paternity as having natural rights, there is no logical barrier that prevents the state from doing the same for maternal rights. Then the child will be WHOLLY a creature of the state in legal arenas, with the "parents" being merely the current, temporary custodians with no expectation or reason to expect that they will be so next year. Or, do away with specific custodians at all, put all children in enormous orphanages, and appoint people to work rotating shifts. Whatever is most efficient, right? Because, after all, the state is the All, the One, and all other beings must serve it.

Hey, that's a reductio, an ABSURDITY, got it? Just thought I would state that clearly now.

Same sex marriage is an Equal Protection situation and that's enough for me and most other folks too, it seems.

Al, that's so close to a bald-faced lie as to warrant calling out. You KNOW this: every single time gay marriage has been put up for a ballot state-wide, it has failed. Most people do NOT see it as an "equal protection" situation that requires recognition in law. It is only elites - judges for the most part, and the legislature class in a few places - that have clearly embraced gay marriage as an equal protection issue.

You can legitimately say that in places where gay unions have been forced upon them, the people have lived with it. That's a different thing. Blacks lived with slavery for a long time, doesn't mean they agreed with it.

I have long been one of those Don Tall supporters: on this issue as well as constitutional, economic and foreign policy issues. Allow me to state the Christian brief for the Don Tall libertarian position on marriage. The civil state should not be in the marriage business. Marriage is part of the sphere of the family. The Civil State should not interfere in the sphere of the family. The Civil State should recognize the relationships that fall within the sphere of the family. Marriage is a covenant between a man and a woman. A covenant is not, in its essence, an agreement or contract between two people. The covenant of marriage is a mutually shared oath and promise.

"It moves us a pretty large step further in the direction of parent licensing, a project the left has had at heart for a long time and that anyone who cares about human freedom in the United States should care about."

Lydia, there are over 300 million folks in the U.S. You can find a few folks who will agree with anything and I can see how visiting any bigbox on a weekend would lead one to the obvious conclusion that some folks have no business procreating but "parent licensing" is on no ones agenda that I know of and I'm pretty familiar with the "left".

A majority now support same-sex marriage in California and recall that Prop. 8 was close (it is likely it passed for two reasons - the proponents were willing to lie and opponents ran a very bad campaign).

A majority support it in New York and this is from a recent PPP poll in Massachusetts:

Tony, you need to keep in mind this is a generational thing and older voters tend to vote in greater numbers than younger voters. Every day your side loses more supporters due to mortality and mine gains as folks age into voting.

"Blacks lived with slavery for a long time, doesn't mean they agreed with it."

Begin rant:

And had conservatives won the Civil War they would have lived with it far longer. What is it with you guys and slavery? Tony, I know my history and I lived through the civil rights movement. If Vincent hadn't retired (or if Eisenhower appointed a conservative to the Supremes) we wouldn't have had Brown. If conservatives had their way we wouldn't have had the civil rights and voting rights acts of the 1960s and the Democratic party has been paying for their passage ever since.

Just a reminder of your roots 1957,

"The central question that emerges--and it is not a parliamentary question or a question that is answered by meerely consulting a catalog of the rights of American citizens, born Equal--is whether the White community in the South is entitled to take such measures as are necessary to prevail, politically and culturally, in areas in which it does not predominate numerically? The sobering answer is Yes--the White community is so entitled because, for the time being, it is the advanced ace..."

"National Review believes that the South's premises are correct. If the majority wills what is socially atavistic, then to thwart the majority may be, though undemocratic, enlightened. It is more important for any community, anywhere in the world, to affirm and live by civilized standards, than to bow to the demands of the numerical majority. Sometimes it becomes impossible to assert the will of a minority, in which case it must give way, and the society will regress; sometimes the numberical minority cannot prevail except by violence: then it must determine whether the prevalence of its will is worth the terrible price of violence."

I think this whole discussion presumes far too much commonality between conservativism and libertarianism. For instance, "can we scrap this slogan?" Who is the 'we'? Conservatives should never have been using it to begin with; it's a libertarian notion.

Ron Paul is not a conservative. What conservatives wants to legalize heroin? Libertarians do not fall under the right-wing tent; I suppose I'm unsure as to whom Lydia is addressing. If it's conservatives, they should never have been persuaded by the libertarian sloganeering to begin with, and if it's libertarians, I doubt they would value many things the way that Lydia and other conservatives value them - at least not more than self-ownership and its attendant "rights".

I strongly reject the statement that I was appealing to something that does not exist. The legal realities I mentioned are truly there. They do not have to be established in the way that a man has to establish paternity if he is not married to the mother. Your bitterness about no-fault divorce is simply blinding you.

Lydia, I think you are still missing the point. Men do not actually have those abilities as rights but as privileges insofar as their wife is willing to continue to consent to the marriage. Men lose most of their practical paternal rights in divorce, and divorce is both very common and overwhelmingly initiated by women. The rights of men in marriage are about as secure as the armed self-defense rights of most citizens in the bluest of the blue states.

Ron Paul is not a conservative. What conservatives wants to legalize heroin?

Opoids were legal for most of our country's existence and most of the people who would do them are already doing them. No one was able to rebut Ron Paul when he countered that attack by asking how many people on the stage or in the audience would rush out to use heroin or meth if it were legalized because on a gut level, most conservatives know that only congenital morons use those drugs. Especially meth.

Which incentivizes abortion, infanticide, abandonment, and male irresponsibility. You play, you pay; seems simple to me.

The state already has the tools to mitigate those things. I could also point out that the current system encourages bastardy and female irresponsibility, but that'd be just pointing out the obvious. As for simplicity, there is nothing "simple" about it. Under the current regime, women have a right to abortion. Setting aside the morality of that right for the sake of argument, that right does give them both total freedom and total responsibility for their reproductive choices. It is not obvious at all why women should enjoy that freedom and the ability to force unmarried men to pay the price for their reproductive choices. That is, after all, setting into law "heads I win, tails you lose."

Al, you continually and repeatedly demonstrate your ignorance of conservatism and its variants. You fail to or refuse to recognize the fact that "conservative" is an umbrella term, a genus word, not a species word. Frankly, when you talk about conservatism you don't know what the hell you're talking about. Someone needs to tie you down and read George Nash to you.

"Every day your side loses more supporters due to mortality and mine gains as folks age into voting."

Yes, we call this the "Will and Grace Effect." I just hope you're prepared down the road to see the same tack taken with polygamy, incest, and pedophilia. Remember, bud, that there's always someone more liberal than you.

Yes, we call this the "Will and Grace Effect." I just hope you're prepared down the road to see the same tack taken with polygamy, incest, and pedophilia. Remember, bud, that there's always someone more liberal than you.

He isn't, but then when it happens he'll be denounced by his own children for his intolerance. That's what happened to the liberal old guard that regarded homosexuality as a very tragic defect. Al's view of history is also not long enough to realize that America is actually a dying state like Roman civilization in the 4th century A.D. and that this sort of liberal-conservative tug of war is cyclical. When our country finally goes the way of all other civilizations, the civilization(s) that rise out of it will be poor but conservative culturally as cultural "liberalism" is nothing more than a sign of decadence in a dying culture.

The Civil State should not interfere in the sphere of the family. The Civil State should recognize the relationships that fall within the sphere of the family. Marriage is a covenant between a man and a woman. A covenant is not, in its essence, an agreement or contract between two people. The covenant of marriage is a mutually shared oath and promise.

Thomas, I don't understand how this argument works for actually privatizing marriage. For the institution of civil marriage to exist *is* for the state to "recognize" that relationship that falls within the sphere of the family. So, too, for the state automatically to assume the custody of the married parents over their children rather than requiring the father to establish it (see above). If civil marriage were abolished, the state would be saying, quite clearly, that this relationship does not exist as a real thing and that the state has no category for recognizing it in law. Indeed, my discussions with several interlocutors here make that clear: One proposes that all that would exist would be an infinite array of self-invented contracts that could include any number of people and virtually any stated enforceable clauses. And, as I have pointed out, when the state no longer recognizes the family and the husband-wife relationship, the state _will_ interfere, and will interfere _more_, because the mother will be legally regarded as a single mother.

I suppose I'm unsure as to whom Lydia is addressing. If it's conservatives, they should never have been persuaded by the libertarian sloganeering to begin with,

John H., I admit that (fortunately) the audience I was addressing is not yet very large. If you look at Thomas Yeutter's comment in this thread you will see a pretty good example of it. I have now seen (and evidently Gina Danaher has seen as well) several people taking that perspective who did not before. (Thomas says he always has, but the ranks of those who do are growing.) "Don Tall" appeals to a certain type of strict constitutionalist, even purist, conservative with libertarian leanings. He used to appeal to me in that way as well, but several years ago I began to see the problems with that, and I've just seen more and more as the years have gone by. I've seen the increasing incompatibility of his positions with social conservatism. This is just one instance. What is happening in some other cases, however, is that socially conservative people (for some reason it usually seems to be young men, but my sample is still rather small) are loosening their grip on and their clear vision of their social conservatism and adopting his libertarian positions instead because of admiration for him and a desire to give all possible credit to his positions.

I'm curious whether Lydia or anyone else can explain the bizarre animus some conservatives, esp. Catholic conservatives, have against Don Tall. I mean, even if Lydia is 100% correct on the narrow arguments she is making about nomenclature and what it would mean to "get out of the marriage business," the larger point seems to be pointing out how unreasonable Don Tall and his supporters are. The central elements of his platform are a non-interventionist foreign policy, a respect for individual rights and civil liberties and reform of the monetary and financial systems. I've seen similar outrages from (Catholic) conservatives before, but it's always about very narrow issues that aren't central to what he would actually do as president. Meanwhile, the same people (in many cases) are totally in the tank for either Romney or Santorum, both of whom have certifiably, demonstrably bad views on foreign policy, for instance, that would certainly come to the fore were they to be elected.

What gives? Is it just that Ron Paul is somehow "icky"? Is it Mitt's great hair? Santorum, remember, supported -- and still supports! -- the deaths of 4,500 American soldiers who died for the lies of Cheney, Wolfowitz, et al. Seriously, I don't understand.

Pitchfork, I would prefer to keep this thread focused on the issue I raised and not have it spread to a general discussion of the Republican primary. Suffice it to say that, as with all such things, it's a matter of priorities among issues. There are, of course, other issues on which I disagree with that candidate. The overall package is now unacceptable to me. You may surmise from that that, whether I have non-interventionist leanings or not (actually, I do), non-interventionism is not of as great importance to me as the package of other issues on which I disagree with the candidate. My comments above, including my attempt to ward off spamming of the thread by rabid enthusiasts, may also indicate to you that he has a lot of very creepy followers and that this bothers me. Certainly not all of his followers (indeed, the post was written precisely because some friends I like very much are becoming his followers), but enough to be bothersome and to make one look back at the candidate and ask why. Now, let's also not get into a discussion of the abstract question of whether the large-scale creepiness of a political candidate's followers should or shouldn't be held against him. Suffice it to say there that if I could see no reason for the creepy followers in the candidate, if it were just a mysterious, inexplicable phenomenon, I wouldn't hold it against the candidate.

What is happening in some other cases, however, is that socially conservative people (for some reason it usually seems to be young men, but my sample is still rather small) are loosening their grip on and their clear vision of their social conservatism and adopting his libertarian positions instead because of admiration for him and a desire to give all possible credit to his positions.

Might that be because social conservatism as a movement has lost much of its credibility with them? Most of the "Christian" commentary sites out there end up invariably pointing their fingers at young men saying "grow up, get married, do this, do that" in a way that is very obvious not biblical in its one-sidedness and that's symptomatic of the larger social conservative culture which has overcompensated for its past imbalance against women by having a "see no evil, hear no evil, smell no evil" attitude toward some of the truly profound problems young men face today.

Ron Paul's message takes much of the substance of social conservative in the form of personal values and links it with both freedom and personal choice. It is a more honorable and to many, more manly, vision than what many social conservatives offer. Rick Santorum, who has written whole screeds utterly denouncing personal autonomy from top to bottom, is practically a little church lady in drag by comparison.

The single greatest problem we face today is that strong male role models don't exist for the majority of young men. Social conservatives tend to see quite clearly the problems rising from bastardy in places like black lower class communities, but tend to not notice the more insidious problem of the weak male role model common among middle class families where no fault divorce completely put masculine authority at the mercy of the wife's consent (and many men do not have the stones to truly stand up to that, knowing which way the state will come down). Ron Paul's message is, quite simply, the most aligned with traditional American male values (freedom, entrepreneurial spirit, personally chosen social conservatism and "walk softly, but carry a big stick" in dealing with others). It's a no brainer that such a message would resonate with many social conservative men whose alternative is nanny statism and the attendant culture that facilitates it.

Certainly not all of his followers (indeed, the post was written precisely because some friends I like very much are becoming his followers), but enough to be bothersome and to make one look back at the candidate and ask why

Apparently, having open Marxists, racists and a former terrorist who only failed to murder a lot of people due to incompetence as close associates was not sufficient to prevent #44 from taking office...

Apparently, having open Marxists, racists and a former terrorist who only failed to murder a lot of people due to incompetence as close associates was not sufficient to prevent #44 from taking office...

It goes without saying, Mike: I didn't vote for him, either. :-) But there were so many reasons that made that out of the question as far as my vote was concerned that if I'd started listing them I might not even have gotten around to his associates.

Mike T, I'm not saying I don't understand the appeal of libertarianism, perhaps even its special appeal to men. (Though I think you overestimate the extent to which young men other than yourself, if they have not personally been burned, obsess about the possibility that their wives will divorce them and take the kids.) What I am saying is that if one is a real social conservative, dare I say a principled one, there are some issues that are non-negotiable. The defense of marriage is one of these. Advocacy for privatizing marriage is simply not defending it. It is advocating further destroying marriage. There will come points where a social conservative will have to part ways with a plain libertarian, however libertarian-minded the social conservative might be. I consider myself one of the most libertarian-sympathetic social conservatives I know, but at the end of the day I _am_ a social conservative and am not going to give up defending marriage. If someone was out there ardently defending marriage against the homosexual agenda last year or the year before, I am sad to see that same person this year saying that he agrees with the idea that "the government should get out of the marriage business." Those two stances are simply incompatible with each other.

Ignoring the obvious, are you proposing the woman gets the abortion the guy wants her to get and if she doesn't, he is off the hook for any financial responsibility?

No. I'm proposing that no man who has consensual sex outside of marriage ever have any financial obligation to any woman he impregnates. Her body, her choice, her responsibility. Abortion and contraception, so long as they are legal, give women total control over whether sex has to result in a child.

Woman, dog, walnut tree, the more you beat them, the better they be?

You left out minority suspects, yankees and bankers.

(Though I think you overestimate the extent to which young men other than yourself, if they have not personally been burned, obsess about the possibility that their wives will divorce them and take the kids.)

I think you underestimate the subtle, but powerful, ways that their view of marriage has been changed. Most men I know simply don't take it as a given--that it is normal--for marriage to last a lifetime barring premature death of one party to it. Divorce has been normalized and many men don't sit there all bitter about it but think "I'm not going through what dad went through" if their parents were married at all at one point. I make such a big point of this issue because it is this issue which is causing men to not "man up."

Fortunately I have not been burned personally, but whatever anger I feel on the topic comes from seeing a significant percentage of the middle age men in my family and associates badly burned--often by women who "need to find themselves."

The defense of marriage is one of these. Advocacy for privatizing marriage is simply not defending it. It is advocating further destroying marriage.

Well, it's hard for me to get worked up about defending the current state of what is called marriage. As you question the libertarians on the matter, I question the social conservatives who compromise on the legality of divorce and many of the attendant injustices that are inflicted by the courts routinely.

Al, in every state in which it has been voted on by the people, gay marriage has been defeated. Those are the facts.

Polls don't demonstrate facts. I trust polls about as far as I can throw them. I work with statistics for a living, and I know how hard it is to get good statistics of OBJECTIVE facts (like mortality rates) in a large population, much less on such things as "do you favor" or "would you support" and all the ways those questions can be manipulated. I have seen and been asked to participate in polls that are manipulative. It's one of the reasons I hardly ever quote statistics about how many people are against abortion.

And had conservatives won the Civil War they would have lived with it far longer. What is it with you guys and slavery?

Al, if you will examine my comment and actually READ it, for a change, you will find that the comment had ABSOLUTELY NOTHING to do with liberal / conservative causes, PoV, or preferences. It had to do with the fact that seeing a condition has prevailed is not the same thing as identifying what people think is good. That reality cuts across the political landscape in all possible directions. As a result, your rant about conservatives is wholly off-point. Side-track. Obscurantist. Muddling up the truth with trash.

Well, it's hard for me to get worked up about defending the current state of what is called marriage. As you question the libertarians on the matter, I question the social conservatives who compromise on the legality of divorce and many of the attendant injustices that are inflicted by the courts routinely.

So, Mike, why don't you stop worrying about defending marriage in its current state and instead start trying to defend true marriage, defend true principles of social formation, and promote replacing the current idiotic "no-fault" (properly, "lots-of-fault") divorce with sanity? As do Lydia, and Paul, and Jeff, and... And, at the same time, also defend marriage as being heterosexual in its nature? And that the state cannot remain a neutral party about what constitutes marriage without destroying the family altogether (which is just what some liberals want.)

Marriage is an institution that exists at the the intersection of the sphere of the family and the sacramental [ecclesiastical sphere.] It existed before the Civil State saw the need to license it. Therefore it is not properly in the sphere of the Civil State.
When the state gets in the marriage business what happens. Let's take Michigan for example. The State creates no fault divorce. The State creates a claim for the spouse [wife] on the pension of a spouse [husband] that she is divorcing. The State presumes the husband to be the father of children conceived during the marriage, even though the wifes infidelity is the cause of the breakdown of the marriage relationship. Children are not designated illegitimate or bastards. Payment of child support is assigned to the same Friend of the Court for both fathers who are divorced and fathers whose children were born out of wedlock.
These are just a few examples of why I think traditional marriage would be better served in Michigan by not having it licensed or regulated by the State.

So, Mike, why don't you stop worrying about defending marriage in its current state and instead start trying to defend true marriage, defend true principles of social formation, and promote replacing the current idiotic "no-fault" (properly, "lots-of-fault") divorce with sanity?

What is true marriage? Is a man who is on his third or fourth wife while the first one still lives truly married?

One of the signs that I see that most social conservatives are "not serious" about this is their unwillingness to demand legal changes that formalize one set of legal rights against fathers for married mothers and another for unmarried mothers. Our Christian ancestors would regard most modern social conservatives as at best useful idiots, and at worst enablers of this behavior by giving unmarried mothers the same right of support from both the fathers of their children and society as married mothers.

Contrary to what Al expected, I am actually perfectly fine with the possibility that such a regime would cause more women to seek abortions. Good public policy cannot be held hostage by the threat of bad private action.

Marriage is an institution that exists at the the intersection of the sphere of the family and the sacramental [ecclesiastical sphere.] It existed before the Civil State saw the need to license it. Therefore it is not properly in the sphere of the Civil State.

Thomas, the third sentence does not follow logically from the first two. Because "in the sphere of" is a totally amorphous sort of condition. Lots of things existed before the state existed, that are within the proper sphere of the state to address in law. Health care existed before the state, so medical licenses are "not properly in the sphere of the state?" That's silly. Same with selling meat, making weapons, defending yourself from robbers, telling lies to defame your opponents, and dumping toxic waste near your neighbor's water source. They all existed before the state. Some things law cannot touch without damaging the common good, so they aren't part of the proper sphere of law. In other areas the law can promote the common good by regulating them. The proper sphere of the state to address in law covers all those things that touch on the common good, insofar as law can promote the common good in those areas.

You want to claim that marriage is one of the ones that the state cannot touch without causing harm, but that's ridiculous also. For centuries in the colonies and then the succeeding US states, law addressed itself to marriage and its consequences without grave damage. As Lydia and others have shown, marriage and family are areas in which the law cannot help touching on in one way or another. It is impossible for the state to NOT address family situations, which means that the state needs to recognize families as valid entities, which means law has to address what is to be considered a family. All you can hope to achieve by not having law that recognizes what it means to be a family is the destruction of the family before the law.

Why do you want to destroy the family? It is the single most important social institution apart from the state.

One of the signs that I see that most social conservatives are "not serious" about this is their unwillingness to demand legal changes that formalize one set of legal rights against fathers for married mothers and another for unmarried mothers.

Mike, I know plenty of conservatives who want to correct the legal mess, but have no clue where to start, practically. What proposals do we put out there that anyone will consider seriously? Getting rid of no-fault divorce? Well, OK, but you have to propose a replacement for that (i.e. "fault" divorce), and THAT's going to be really messy. You might say let's just go back to what we all had 70 years ago in law for divorce, but customs have changed enough that this would cause major issues even for people who might be willing to undertake some kind of clean-up of the mess. For myself, I know that I will never get a divorce, but I have seen 3 marriages where there was such severe problems that it was better for society that the civil association be ended (whatever the ontological reality that remained: civil divorce without re-marriage is not forbidden by Christian principle).

and at worst enablers of this behavior by giving unmarried mothers the same right of support from both the fathers of their children and society as married mothers.

I have no idea how liberals can even look themselves in the mirror on this. On the one hand, they have no problem saying that boyfriends who play are obliged to be willing to pay. (Al said it explicitly above.) It doesn't matter that the boyfriends have no say over whether the girl keeps the baby or kills it, they already made their decision when they decided to play.

On the other hand, they go right on decrying the pro-life intent to "take away" a woman's "right to choose" whether to allow her baby to live. There's no "you play, you pay" here, Ohhhhhh noooo. The fact that the woman played, she already made her choice (same as the guy) to engage in an act whose nature is to cause pregnancy, and still later on gets to decide whether she wants to pay doesn't worry them in the slightest. Double standard, of course.

But conservatism (and society) isn't going to be well served, especially not long term, by trying to sever what minimal legal ties we have left that recognize reality: to willingly participate in an act that brings into being a new human being JUST IS to be morally responsible for that new human. We can recognize reality in law or not, but the reality remains. If you were proposing to allow the law to be more coherent and get rid of the double-standard above that liberals love, well, why not get rid of it in the right direction, and have the state recognize "you play, you pay" applies to women as well as men? That's more wholesome all the way around.

Tony;
I concede you make a good case until you say "Why do you want to destroy the family? It is the single most important social institution apart from the state."
That is what the debate is about. The state has become the social institution that imposes itself into all sorts of other social institutions to their detriment. By way of example, the civil state has imposed itself into the sphere of education. The civil state should be secondary to the family and the church in the sphere of education. Allow me to bring forth a second example, health care. How has medical care has been advanced by the states involvement in that sphere? State licensing of health care professionals has not accomplished anything that the professions could not have done on their own. The state licensing of health care professionals is a bad legacy of the progressive era.
The implications of no fault divorce have been more destructive to marriage then the disestablishment of that institution by the state would be. When the civil state created no fault divorce it declared war on traditional marriage.
The family is the single most important social institution. It is not "...the single most important social institution apart from the state."

This is all getting quite "theoretical", but that is secondary. The reality is that if you have the state deciding who is and is not married, then marriage becomes a creature of the state, and in 21st century America, that means you will get gay marriage. So, conservatives have a choice to make. They can either support a decoupling effort and possibly lose, or they can go on and draw their line in the sand and make the loss inevitable.

What's most interesting is how this exposes one of the main divisions on the right today--between people who more-or-less trust the government and those who consider it public enemy #1.

Mike, I know plenty of conservatives who want to correct the legal mess, but have no clue where to start, practically.

I'm skeptical that many of them would be amenable to actual reforms because the reforms would hit close to home. For example, many conservatives I've met have been married at least two, if not on their third or fourth spouse. Even many of the Christians I know tend to say "judge not lest ye be judged..." (that other "refuge of scoundrels" that Samuel Johnson forgot to mention) when confronted with their own decision to remarry multiple times. You don't have to be a Catholic to notice that the Bible says you may free yourself of a spouse under some conditions, but it never says you can remarry if you marriage was valid.

You could start with these general ones:

1. A reform which categorically abolishes all family courts and moves jurisdiction to state civil courts.
2. A reform which would severely curtail the ability of civil courts to alter or abolish prenuptial agreements, and that would formally eliminate the financial state of either party as a basis for declaring it unconscionable during consideration of a termination by failure of performance clause (that is, if the agreement calls for asset stripping a cheating spouse upon divorce, the judge may not consider the consequences of the asset stripping at all).
3. A reform to formally eliminate child support duties for all unmarried fathers who do not acknowledge paternity before the law.
4. A reform to eliminate direct welfare transfers to unwed mothers (as opposed to coverage under SCHIP for their children).
5. A reform to define the only grounds for divorce to be abandonment, physical abuse (including children) and a pattern of incorrigible felonious behavior that has resulted in actual conviction. I hesitate to include a general charge of "sexual abuse" because sexual abuse of a spouse that doesn't result in physical abuse is virtually impossible to prove beyond a reasonable doubt, much like rape is when the defendant engaged in no behavior which would show reasonable signs of coercion.

If no-fault divorce cannot be removed, then I would add the following to tighten the vise:

1. Custody of children would define support duties. Whatever custody agreement that results in less than a 50/50 split of time would result in prorated child support duties that are aggressively prorated based on the percentage of time of the month less than a perfect divide that the spouse with the lesser custody period has with the children.
2. No-fault divorces would never result in support duties for the spouse being divorced.
3. No-fault divorcees would never have claim to any retirement assets of the divorced spouse, regardless of age or any claim to having enabled the acquisition of those assets. This would particular help government retirees, who often retire at an early age.
4. No-fault divorcees would have no claim to any assets that came into the marriage from the divorced spouse or any assets acquired through the liquidation of those assets or the investment of those assets.
5. No-fault divorcees would not be able to file for a new civil marriage for any period less than five years.

I have no idea how liberals can even look themselves in the mirror on this. On the one hand, they have no problem saying that boyfriends who play are obliged to be willing to pay. (Al said it explicitly above.) It doesn't matter that the boyfriends have no say over whether the girl keeps the baby or kills it, they already made their decision when they decided to play.

Which is precisely why I said to him that he's advocating "heads I win, tails you lose." For one so wont to cite Civil War and Civil Rights Era abuses of blacks, he sure is fond of defending a scenario that is ethically similar to sharecropping.

So, conservatives have a choice to make. They can either support a decoupling effort and possibly lose, or they can go on and draw their line in the sand and make the loss inevitable.

You will lose regardless because all of those nice religious contracts will be nullified by a secular judge who pulls out the establishment clause on you claiming your religion-inspired contract is tantamount to asking him to enforce ecclesiastic law. In the short term, this would be like total war where burn the fields as we retreat so the enemy can't eat. Either way we'll lose. I am sympathetic to the idea of losing in a way that makes the other side achieve a pyrrhic victory.

"It is impossible for the state to NOT address family situations, which means that the state needs to recognize families as valid entities, which means law has to address what is to be considered a family."

Ah...Tony... ummm...you have just made an Equal Protection argument. The law needs to recognize how folks actually live their lives. Gay folk can form families and we have a body of law that deals with that.

I understand that you really, really believe these changes are really, really bad but you are grasping some really thin reeds. Of course polls can consist of questions that are designed to skew the results. That is one of the problems with questions around abortion. However, you are in denial if you don't see the ground shifting here.

When the issue was first (2000) on the California ballot it waltzed to a 61 percent victory. A couple of years ago Prop. 8 barely passed (52 -48) and even with a poorly run opposition proponents had to lie and throw lots of money at it. The Mass. poll questions seem straight forward. What evidence do you have that a majority of Mass. residents are silently seething with bitterness and resentment over this matter?

The family is the single most important social institution. It is not "...the single most important social institution apart from the state."

Thomas, I wasn't trying to propose that that the state is more important than the family. I was trying to prescind from the question in order to focus attention on the other issues, since it is entirely clear that we don't (or at least, shouldn't, in the face of the proto-totalitarians around here) want to destroy the family, and the family is EITHER the most important, or the second most important, and the argument works either way.

Ah...Tony... ummm...you have just made an Equal Protection argument. The law needs to recognize how folks actually live their lives. Gay folk can form families and we have a body of law that deals with that.

Al, unlike you I am in favor of applying Equal Protection principles where there is equality and not applying them where there is no equality. Gay folk in gay relationships cannot form families in the natural manner, because the what happens to gays during their activity isn't of such a nature as to be capable of producing a child. Because of that physiological reality, their activity is incapable of being an act of love towards a new child. Therefore, their relationship is not equal law to that of heterosexual couples. They can only "form families" under an already screwed up scenario where the idiotic fruitcakes in government decide to grant them opportunities that they shouldn't have been granted, namely to adopt kids into a relationship that isn't a family. Or, (taking the other method) where a person uses a doctor and a donor to provide them with a baby by in-vitro, AGAIN a scenario that no society should condone. Without prior faulty application of law, there wouldn't be any of these so-called families that need "equal protection". You cannot create an argument for equal protection without first assuming what you need to prove: that a gay relationship is equal in all the things that matter before the law compared to a heterosexual relationship. And you cannot prove that without destroying the family before the law, because the very nature of heterosexual relations bears on the child that such relations produce: to treat gays as equal before the law is to treat children as accidental in all respects to the marital relationship.

Ah...Tony... ummm...you have just made an Equal Protection argument. The law needs to recognize how folks actually live their lives. Gay folk can form families and we have a body of law that deals with that.

Curiously, the law does not recognize how many alpha males and their attendant small harems live, as it insists upon forcing the protections of marriage onto them.

The fact that the woman played, she already made her choice (same as the guy) to engage in an act whose nature is to cause pregnancy, and still later on gets to decide whether she wants to pay doesn't worry them in the slightest. Double standard, of course.

--between people who more-or-less trust the government and those who consider it public enemy #1.

Matt, I'm sorry, but that's shallow. _I_ more or less consider the government public enemy #1. Heaven knows, I don't trust the government! Good grief, no.

The whole point of my post (which I can't help thinking people didn't read) was that for the government to recognize the existence of marriage and the family is for the government to accept limits on its own powers. It is precisely because I do not trust the government that I want the government to have treated my husband as the father of our children automatically from their birth (for example), without our having to "apply" for that "privilege," to have acknowledged our family as a natural unit in virtue of our previous marriage without our having to prove anything further. Abolishing civil marriage does away with this recognition of the family unit, which serves as a prima facie limitation on government power.

Change abortion law: the woman can still get an abortion. But she has to pay 1/2 the value of 18 years of child-rearing. The biological father has to pay the other half. The money goes to pay for orphanages and adoption costs. (Doesn't matter if they are married or not.) That way, "you play, you pay" applies to both people equally, and takes the financial incentive off the table, puts adoption on an equal footing with abortion, motivationally. How's that for "equal protection", where we actually PROTECT the innocent person here.

Mike, other than the above rule, I can go along with a lot of your reforms. Since I think we live in the same state, let me know when you write to your state legislator.

It is precisely because I do not trust the government that I want the government to have treated my husband as the father of our children automatically from their birth (for example), without our having to "apply" for that "privilege,"

But you already do have to apply for that privilege, because you have to apply for a marriage license. I actually had to provide a birth certificate to get a marriage license, and they would have denied me otherwise. Other states require a blood test, and all require a fee. Right now, the government is not really interested in telling people they can't marry, but they absolutely could if they wanted to. That's the deal we have, and while it has its advantages, you can't blame others for finding it a bit perverse.

Matt, when you get married, you don't already have children. Or, if you do, the presumptive parenthood of that father isn't part of what your marriage license applies for.

As for the government's disqualifying people from getting married, we can cross that bridge if we come to it. It would take a statutory move to make a marriage license something you had to, say, pass parenting classes in order to get (because you might become a parent after getting the marriage license). As you can imagine, I would oppose that tooth and nail. But you knew perfectly well what I meant by "not having to apply for that privilege." The marriage is already in place, and parental rights over children born within the marriage follows automatically therefrom. This is particularly important for the father, since the parental rights of an unmarried mother are generally recognized *in theory* (though not, I would say, in practice) as much in law as those of a married mother. Not so with the father. Again, the destruction of governmental recognition of marriage entails the destruction of governmental recognition of the family and hence undermines the rights of married fathers. Those who don't want government interference should therefore oppose destroying that self-limitation of the government. It is no answer to this to raise a purely hypothetical scenario in which some other law is passed that puts some, new, as-yet-unspecified, and unreasonable additional strictures on the ability to be civilly married.

Matt, societies in the past have always had rules that spell out whom you cannot marry: almost all have said you can't marry your child or brother. Many have said you cannot marry your cousin. Usually (if not always) the state was ready to back up those rules. I doubt that any state since the establishment of Christendom didn't enforce the social rules and constraints about whom you may marry. So, your complaint sounds a little overheated. There is actually some sound reason for this, even though it makes me uneasy to have the state make these rules. Let me give one of the reasons it may arise to a state level decision.

The biological dangers that come about through marrying close relatives isn't really all that great - if it is done just a few times. If you marry a cousin, apparently the danger of a noticeable genetic problem is something like 2.8 %. Not really all that worrisome. But if you do that for generation after generation, that probability climbs pretty quickly. So, the reality is that marriage unrestricted isn't an immediate problem, but will become a problem for society eventually, down the road. This is the sort of common-good situation that it takes involvement of the larger community to deal with: the scope within the view of each individual choice doesn't really represent the scope of the full long-range effects on society.

So, if we need a society-wide rule about it, we need a society-wide rule-keeper. I'm OK with that being the Church, but I guess many people aren't.

Well, I remember thinking that having to provide a birth certificate was a rather unreasonable restriction. But I don't understand at all why having to apply to get married at all is the way it should be while having to apply for some particular sub-privilege of is a travesty. I'm not remotely convinced by the handwave of 'we'll cross that bridge when we come to it', because this reasoning could be employed in the service of any argument we could possibly make on the subject. 99% of the time, for instance, there is actually no dispute about a father taking responsibility for his children, because no one else wants responsibility for them. So then, if the process of taking responsibility for children were no more onerous than obtaining a marriage license today, it becomes acceptable by our premises. Of course, we would oppose any further unwarranted restrictions on this process...

Tony said earlier that, properly conceived, the state does not create marriage but merely recognizes it. Presumably most Christian conservatives agree, and quite a few non-Christian conservatives as well. But then we have to admit that this is not what actually happens today. Today, you apply to the state for a license to get married and then if and only if you are approved you can get married--the state is in full control. Most churches, perhaps all, will not marry you without a license. If one does not trust the government, then this should be intolerable, as it is now in the role of creating and administering the very thing one wishes to protect from it.

We all want shelter from the ravenous bureaucrats at CPS, but if a system of civil unions, replacing marriage, would do this while at the same time removing marriage from the control of the government and putting it back with the church where it belongs, then what exactly is the objection?

taking responsibility for his children, because no one else wants responsibility for them. So then, if the process of taking responsibility for children were no more onerous than obtaining a marriage license today, it becomes acceptable by our premises. Of course, we would oppose any further unwarranted restrictions on this process...

Because it's much, much more objectionable, dangerous, and statist for there to be existing children whose married parents don't already and automatically have custody over them than for there to be an existing love (and even commitment) relationship, even what is in the eyes of God a marital relationship, between two adults that has not yet been officially recognized by the state. But Matt, it's interesting that you should bring this up. I said up above that privatizing marriage would be a long step in the direction of the leftist project of parent licensing, and voila! You come along and endorse parent licensing.

if a system of civil unions, replacing marriage, would do this while at the same time removing marriage from the control of the government and putting it back with the church where it belongs, then what exactly is the objection?

Well, first of all, that's a different question from, "Why not totally privatize marriage?" But second, the objection, exactly, is that putting everybody into a civil union is an *obvious* downgrading of heterosexual relationships to the level of homosexual relationships. In states that do not recognize homosexual unions, such a change of terminology would just be an ugly neologism lessening the beauty and stature of marriage. But of course that isn't what's proposed anyway. What's proposed is that homosexual couples be included, which I oppose on its own terms. In states that presently have both civil unions and civil marriages, calling all of these "civil unions" is a declaration of equality between heterosexual and homosexual unions, a proposition I staunchly and vigorously deny.

Do I really have to say these things? Shouldn't it be obvious what a social conservative will say?

Tony said earlier that, properly conceived, the state does not create marriage but merely recognizes it. Presumably most Christian conservatives agree, and quite a few non-Christian conservatives as well. But then we have to admit that this is not what actually happens today. Today, you apply to the state for a license to get married and then if and only if you are approved you can get married--the state is in full control.

There's a significant equivocation going on there, Matt. The state does not create the INSTITUTION of marriage, that's prior to the state. Any individual instance of a marriage obviously isn't prior to the state - temporally speaking, that is. But marriage (institutionally) is _prior_ to the state both in the temporal sense, and prior (institutionally and in the individual examples of it) in the logical - order - causal sense.

For Christians, it isn't the state that "creates" the individual marriage either. The marrying couple are the ones that actual cause the new marriage to come into being: their exchange of vows is the cause. The minister is NOT the cause of the marriage, he only witnesses it on behalf of the Church. Certainly it's not the state.

Yes, the minister won't go ahead with the ceremony without the state license. And this does actually mean the state has a role. Would it surprise and offend you to learn that when the state first took over this oversight role, the Church objected, rather strenuously? If we still had a Christian society, instead of a post-Christian society, I would say fine, get rid of state licenses, and we'll just go back to having the Church regulate it on behalf of society as a whole. But since that cannot work in a non-Christian society, and there really is a role for society to regulate the matter, we're stuck with the state doing so.

What the state "creates," if you want to call it that, is a recognition before the law of a new associative entity (kind of like the recognition of a new corporation, or a new non-profit entity - which you can form without legal recognition but you won't get the benefits of legal recognition), the marital union. Before the law, this legally recognized association has a certain status for a number of questions that the law must take note of, including if there is a baby born after the date of the union, the baby is legally assumed to be the child of the union (and of the 2 parents, which isn't quite the same.) The state doesn't "create" the child either (thank God), and it doesn't "create" the relationship of father-child, it merely recognizes that relationship in law, and it does so _presumptively_ in the case where the child is the child of a marital union.

But you need to realize that there is a major difference between a condition where the state regulates something by making sure you register the event and meet 3 simple, straightforward, objective criteria (different sexes, not cousins, and old enough to consent i.e. 18), that virtually everyone in society can meet when old enough, and the state creating a regime under which it is up to the state to decide whether to grant you permission to marry. It is the difference between mere oversight of a RIGHT, and granting a _privilege_. We don't want to start the state down the road of looking at marriage, or having children, as a privilege that lies within the bounty of the state. It isn't.

Well, I remember thinking that having to provide a birth certificate was a rather unreasonable restriction.

Perhaps you didn't realize that the birth certificate is a simple, objective way of clarifying one item of concern for the state in its role of oversight of a legitimate social good: it enables the state to check into whether X is a cousin of Y. There are lots of cases where a law looks silly until you understand the rationale behind it, then you say "oh, now I get it.' Maybe that's not a sufficient reason for the action in this case, but frankly, for what is supposed to be a decades-long commitment, taking an hour or two to locate a birth certificate isn't really all that onerous a burden. The Catholic Church often requires vastly more in the way of pre-marriage preparations.

And, were there any question, to check age. I was very young looking when I got married at the age of twenty. I didn't bring my birth certificate and didn't yet have a driver's license. The man at the registrar's office was rather rude and told me, "You look like you're fourteen, but I'll tell your lie for you." He shouldn't have done that. If I'd really been fourteen (and I suppose I might have looked that young) then I shouldn't have been getting married, *at least* without parental involvement and probably not at all. I was furious that he said I was lying. I would rather he'd refused to give us the license as amatter of form and not impugned my honesty. I brought in a school photo ID with my age on it when we came to get the license, just to show him I wasn't lying.

What we very much need, in the pro-life, pro-marriage community, is a concerted effort to defend certain unalienable human rights of children which are currently not popularly recognized anywhere save perhaps the Catholic Catechism, and there, sometimes not as crisply as one could desire.

Every human child has the following unalienable human rights:
- To fathering by a man; specifically by that man who is the rightful male guardian of the child (with the default rightful guardian being his/her biological father);
- To mothering by a woman; specifically by that woman who is the rightful female guardian of the child (with the default rightful guardian being his/her biological mother);
- To, for want of a better term, "family-ing" by a married couple and brothers and sisters (and the specific persons obligated to provide "family-ing" are his parents and any siblings).
- To the knowledge of his heredity (which includes identity of biological parents and medical records if needed);

Of course there are occasions when a child does not receive fathering or mothering or family-ing on account of the death of one or both parents, or not having any siblings. That is a tragedy but not a crime inasmuch as no human being is responsible for the state of affairs.

But if a human being takes positive action to deny a child his/her unalienable right to fathering or mothering or family-ing, then that is a crime, a deprivation of the child's unalienable human rights; and as such it may be prosecuted.

Consider, if you will, the crime of kidnapping. This is not just a crime against the parents who're deprived of the right to raise their child; this is also a crime against the child who're deprived of their right to parenting by their mother and father. Even if the kidnapper otherwise treats the child decently and raises the child as his/her own, the child has been deprived of his/her right to parenting by their rightful guardian, and the knowledge of his/her heredity.

In the same way, adoption by a homosexual "couple" constitutes a crime and a human-rights violation against the child, although without a doubt the pair of persons aren't thinking of it that way. They are (assuming it's two women) conspiring to deprive the child of fathering by the child's rightful male guardian and by familying by a married heterosexual couple.

When parents of a minor child divorce, they are at the very least impeding the child's right to family-ing. They are likely reducing the child's full-time access to simultaneous father-ing and mother-ing. Legal permission to do this kind of thing to a child should be limited to situations where the child's rights are likely to be injured more seriously if the separation is not granted. The current system of "no fault" divorce is, in general, abusive of the rights of children to fathering, mothering, and family-ing, and ought to be abolished or radically reformed.

Likewise, anonymous sperm donation should be illegal unless it is accompanied by a simultaneous adoption agreement from another man and a way to unseal the knowledge of the donor's identity and heredity at the child's request. Why? Because a child conceived with that sperm would be deprived knowledge of his/her heredity, and without a transfer of guardianship in the form of an adoptive father, the child's right to fathering continues to attach to the child's biological father as the "rightful" father.

There probably already are, or soon will be, techniques for creating a female human embryo from the genetic information of two women without a man's sperm being involved, or a male human embryo from the genetic information of two women plus the Y-chromosome (solely) from a male third party. Such procedures should be illegal because they confuse the issue of heredity and once again deprive the child of his/her ability to determine who exactly his/her father and mother and siblings are, which deprives him/her of enforceable rights to fathering, mothering, family-ing, and heredity.

I think it is important that we put forth our arguments in this rights-oriented language since it is the language with which the American legal system and political culture are most familiar.

In doing so, we should not abandon the existing moral arguments which are perhaps better-thought out, can clarify the fullness and limits of the child's rights, and illuminate the corresponding moral responsibility of the adults involved.

So I am not arguing for replacing existing language.

But I am arguing for adding rights-oriented language to our existing arguments.

In the 17th-19th centuries, our forefathers were often remiss in articulating and defending the rights of slaves. But the tide turned, and we now look back on this massive moral error of our ancestors with perplexity and dismay.

In the late 20th century we were remiss in articulating and defending the rights of the most voiceless of all persons, the unborn, and sadly we remain so today in the early 21st century, though I hope the tide is turning. I hope and suspect that the Americans of the late 21st century will look back on the late 20th and early 21st centuries with perplexity and dismay at our crazed massacre of our unborn brothers and sisters and find nothing in that mindset with which they can identify.

And, I hope that they will likewise look back on our abuse of our children by the culture of divorce, of gay adoption, of embryological experimentation and anonymous parentage, and (to borrow a phrase from another historical precedent) say, "Never Again."

I agree that anonymous sperm (and egg) donation should be illegal. I would make it illegal without exception. In fact, I would also vote (at the state level) to outlaw in vitro fertilization.

I'm going to go out on a limb: I have my doubts about whether technology will ever successfully produce human offspring from the genetic information of two women. I hope I'm right. But if such a thing or any other child-manufacturing horrors were possible, they should also be outlawed.

One need not believe that the state has any business in establishing or defining marriage, to see that the state has a role to play in forcibly defending it.

For IF the proper role of the state is to limit its use of force to the defense of the rights of persons from infringement by others (including their parents);

And IF mothering, fathering, and family-ing are, as I have articulated, unalienable human rights of children;

...THEN, the state may enforce laws against actions by adults, even the parents, which would deprive the child of said rights.

I have sympathy with the libertarian view; indeed, I believe I not only hold it, but hold it a lot more consistently than certain other libertarians (I'm thinking of the pro-choice ones particularly).

But I happen to believe that children have rights which are intrinsic to their identity as children of specific persons, and as gendered younglings of a gendered and sexually-reproductive species, and as persons created in the image of God.

Human individuals are granted just authority under God's moral law to forcibly defend innocent persons (including themselves) against assaults on their intrinsic rights and dignity. This is why self-defense is an unalienable right.

The exercise of that just authority to use force to defend innocent persons may be partly delegated to paid employees. When an entire society collectively agrees to select a certain group of paid employees to exercise that delegated authority, it's called establishing a government.

It is well within the right of an individual to use force to prevent an adult from depriving a child of his/her right to fathering, mothering, and family-ing. Thus we may delegate this duty to our employees, the government.

I'm pretty confident that they WILL have female children created from the genetic information of two women (with an egg donated by one of the women or by a third party), and male children from the genetic information of two men (with an egg donated by a female third party, and a womb of possibly a fourth party being used for gestation).

The research is underway, and of course children have already been born to lesbian couples using an anonymous sperm donor where the fertilized genetic information is inserted into the egg of the woman whose genetic information wasn't used. It's legal in Holland and Spain, apparently.

Of course the genetic sequencing required to blend two women's DNA (or two men's) into a unique mix capable of being reinserted into an egg is a bit more difficult.

But given the advance of technology?

I doubt we'll see it in the next five years. But I'd be hugely surprised if it didn't exist in 25. And it'll take a nuclear world war or something similar to prevent it existing sometime in the next 125 years.

Sorry to pour cold water on your expressed hope. But you said "ever" and we're not talking about time travel or duplicating consciousness or stellar engineering. It's just a matter of detailed biochemistry and genetic sequencing and we're already getting really good at that stuff. So I wouldn't hold out hopes of a technological roadblock. This just isn't that challenging, in the long run.

This is a nice fairy tale about how government marriage supports fathers. It would be laughable if it weren't so completely mistaken. Have you known any men who have gone through an acrimonious divorce?

As a Christian, one would think you would support getting the government out of what is (in the RCC at least; I can't speak for other churches) a sacrament. We don't need a government license to take communion, so why do we need one for the sacrament of holy matrimony?

For a blog titled "What's Wrong with the World", you missed a huge one here.

Keith, we are staring at the extremely high likelihood, within the next 3 years, of a Supreme Court taking on the following question: if state X defines "marriage" to include include 2 gays (if they go through the ceremony), and state Y defines marriage to explicitly exclude that, what does the federal government do about rights that end up crossing state lines? Example, federal labor law and tax law provides that if an employer provides a pension to an employee, that pension must automatically include a spousal right, a joint and survivor pension. If the employer is in state Y, and 2 gay employees live in state X, does the federal say that the employer does, or does not, owe a pension right to the non-employee gay "spouse " / partner? Does the employer owe them such rights, unless they move to a state that repudiates such marriage, in which case the pension right lapses? Chaos.

There might be a way to thread this needle that nobody has seen yet, but don't hold your breath. The federal government is supposed to give "full faith and credit" to state enactments, including to marriage. This obviously works when states enact virtually identical meanings to marriage. When they start explicitly opposing each other on that meaning, the federal government cannot be neutral, it has to decide one way or another. This was, effectively, the underlying social / political problem in slavery: some issues are not capable of sitting one way for some states and an opposite way for other states, while the feds sit neutral. It cannot stand.

Well, CL, I see that one reader, at any rate, knows how to try to waste my time by demanding that I repeat everything I've already said. Learn to read, and don't bug me, lazy fellow. I'm not going to repeat what I've already repeated multiple times in this thread.

Keith, no, that's not what the slogan means on the face of it. Moreover, RP went on and said it should "go to the churches" or words to that effect. Not that it should go to the states. He definitely sounds like he is advocating the complete privatization of marriage along the lines that several commentators on this thread (most recently, the charming and hard-thinking CL) have done.

Tony also explains why the insanity that is homosexual "marriage" is causing a crisis that is not obviously soluble absent a constitutional amendment. I support a marriage protection amendment to the U.S. constitution. It could be very minimal, simply abolishing homosexual "marriage" or other similar unions (such as homosxual civil unions), while leaving other details such as divorce law, exact marriage age, and the like to state law. It's unfortunate that this should have come up, but such is the insanity of man.

Supporters of constitutional government need to distinguish between the federal government's simply grabbing power not granted by the constitution and, on the other hand, a federal amendment, which could not be enacted except through an arduous process that perforce requires large-scale agreement by the states.

So - while he might believe that marriage should be completely private - his only actual power would be to get the federal government out of marriage. I agree with him. We need to get the federal government out of a LOT of things! The same case is made for ending the federal government's "war on drugs", for ending the federal government's interventionist foreign policy, for ending the federal government's education policy, energy policy, health-care policy, etc. In all these cases, states and private businesses and individuals would be free to do as they choose (thus he is not an "isolationist", nor is he advocating that "all drugs be legal" - two common anti-Paul talking points.)

Just remember this: "He who lives by the government, dies by the government". If you really believe the federal government should define marriage, fine. But, what if they DO define it - but as something completely at odds with what you want? Then what do you do? What if the federal government defines marriage as "a union between two consenting adults", then forces churches to recognize and perform gay marriages? There are lots of unintended consequences to government involvement!

Ron Paul's platform is all about liberty. That means freedom from unwanted government intervention.

You're a little touchy there, Lydia. If you're not as lazy as I, perhaps you could take 20 minutes to watch this documentary trailer from Ben Vonderheide, bearing in mind that this is happening to fathers across the U.S. and probably the Anglosphere in general, in order to disabuse yourself of the notion that government-backed marriage is in any way supportive of fathers' rights.

No, thanks, CL. I consider the "men's rights" argument to be irrelevant to my point here. And I've discussed that with Mike T, above. Perhaps you haven't read it. Destroying marriage will only destroy the paternal rights that married fathers in excellent, functional relationships with their wives presently have. Destroying marriage is hardly the solution to the mess of no-fault divorce and the mistreatment of men in divorce. Not even close.

Sigh. Some people can't even be bothered to read the _immediately preceding_ comment. See my reply to Keith. I think I need a ditto function.

If you're referring to me, then you can find solace in the fact that I not only read your reply to Keith but his preceding comment as well. I was actually replying specifically to both of those comments - disagreeing with you and agreeing with him.

I sincerely hope that you actually read my comment (as, I think, it furthers his argument and weakens yours) and that you didn't just skim it and file it in the dustbin without analysis.

No one is talking about destroying marriage, just taking the government out of it and leaving it to the churches where it belongs. So much for the "separation of church and state" when the government meddles in marriage! How are men's rights not relevant here? At least watch the trailer and you'll see just how much the government cares about fathers - and thus, children, which is what this is really about and why stable marriages are important.

How did marriage work before 1500, when there was no civil involvement? As for your argument about taxes, this was implemented only in modern times that coincide with the demise of marriage. Are you seriously saying that government involvement can help the current state of marriage?

The more government gets involved in people's lives, the more of a mess things get. Did it not occur to you that perhaps government involvement actually weakens institutions (such as sacramental marriage, the meaning of which has been all but lost to the world)?

That you seem only to be able to defend your shallow and convoluted thinking with spitting sarcasm speaks volumes. You would do better to accept that you may be wrong about some things and take a bit of criticism in the spirit in which it was given, then think before you respond. You accept the status quo without much thought here and seem to have rather a condescending attitude toward men in the comments section to boot.

No, CL, I defended my views at great length in this very comment thread. The entire idea that this is the government "interfering" is one I have addressed. I've addressed the idea that it's even _possible_ to "take the government out of marriage." Issues of property division, intestacy, and child custody come up all the time. There is this thing called "common law" that has often dealt with them--judge-made law. The fact that something wasn't addressed by statutory law does not mean that it was not a legally recognized state.

My "spitting sarcasm" comes in because the things I have actually written are not maturely addressed. Commentators write as if I must re-write what I've written just for them, as if everything must be re-done ten times for each new commentator who comes along and says the same things. I won't do that.

Chucky D, your comments, too, have been answered. For example, Tony and I both discussed the question of not having the federal govt. "involved" in marriage. I seconded Tony and expanded upon Tony's reasons for the need, now, given the insanity of what the homosexual lobby has wrought, to address this by constitutional amendment. Third, I explained the difference between addressing it by constitutional amendment and addressing it by usurpatious federal action _without_ an amendment (that was a bonus). Just how much more seriously was I supposed to take your comment? I also gave arguments against Keith's interpretation of RP as merely referring to federal involvement. Let me note here: The President has no role in passing a constitutional amendment, anyway. As President, RP wouldn't be able to stop the adoption of a marriage-defense constitutional amendment under the miraculous circumstances that such a thing were to pass.

Moreover, Chucky D., it was you, yourself, who said that he isn't running for king. Ah, yes. This has some relevance to the claim that he could even "get" the federal govt. "out" of the business of defining "marriage." Currently there are gazillions of federal laws and programs that do involve the concept of marriage and hence its definition. _Since_ he isn't running for king, just how much success would he even possibly be able to have at making it unnecessary for the federal government to continue to recognize civil marriage and hence have a definition thereof? In case you haven't noticed, the federal govt. can't presently do without some way of recognizing who is married and who is not, for many purposes. At present, I believe that same-sex couples are _not_ recognized as "married" for, say, federal tax purposes, regardless of whether they have a piece of paper from a state that says that they are.

I forgot to mention that I wrote a long blog post a while ago explaining to MRAs why their dream of privatizing marriage solving much of anything with what is actually hurting men's rights is a pipedream. I've found that MRAs tend to be like feminists in their inability to see the bigger picture. While they are quite right (far more so than most social conservatives and liberals) about how men are really treated by the system, they don't understand at all why or how to fix that.

In my experience, MRAs are the male equivalent of feminists. Whatever their valid complaints, they invariably go off the deep end into a form of collective judgment against the other gender and ignore the complexities of what upsets them. Once you think about "privatizing marriage" systematically, you realize it is only going to happen in a framework in which the state will fundamentally respect the freely chosen decisions of consenting adults codified in a marriage contract, but with ultimate authority to intervene when things go awry. It doesn't matter what the contract says, if the state finds out that a raging alcoholic father is fighting for his custody rights under the contract against a drug-using, sex-addicted mother, the state ought (and likely would) have reserved the authority to tell them to get stuffed as a couple and take their kids away.

I think part of the solution here is to reduce and focus the authority of the courts. For example, I think judges out to be able to be deposed for simply showing poor judgment, refusing to follow the law as written when it is constitutional or inventing new doctrines (such as when the SCOTUS whole cloth fabricated "absolute prosecutorial immunity" when the legislature(s) never gave them more than qualified immunity). The process for reining in the judiciary when it goes off the reservation needs to be greatly streamlined, as that alone would do wonders for many of the injustices that happen with divorce and similar arrangements that get on the MRAs' nerves.

Well, I think you kinda got my point. I was drawing a distinction between what Dr. Paul believes and what he'd actually be able to do. What good does it do to demonize someone for beliefs that can have no social consequence?

As for a constitutional amendment - what about the scenario I described above:

What if the federal government defines marriage as "a union between two consenting adults", then forces churches to recognize and perform gay marriages?

Although I didn't specify a constitutional amendment, that is what I was referring to. I think, in that case anyway, you'd agree that the federal government needs to "get out of the marriage business"!

I think, in that case anyway, you'd agree that the federal government needs to "get out of the marriage business"!

Constitutional amendments are voted for or against with specific content. I'm not favoring a content-unspecified "federal amendment defining marriage as something-or-other, made up by somebody-or-other." I'm favoring a specific marriage-protection amendment. Trying to pass it would provide no opportunity for the mischief in your scenario, as new content doesn't simply get "filled in" replacing old content along the way. My position, if somebody came up with the amendment you mention, and if it looked like it had a snowball's chance of being ratified, is that it would be a wicked, perverted amendment. Not that there should never, under any circumstances, be any mention of marriage in the U.S. Constitution, never be any amendment to the Constitution that mentioned marriage, etc. There simply is no principle to that effect that is defensible. There is no abstract argument on so vague a subject as whether the federal constitution should ever contain anything about marriage. The questions we discuss must, if we're to have any justified opinion on them at all, be more specific than that.

So, no, in that case my position would not be that "the federal government needs to get out of the marriage business." Please remember that constitutional amendments are _largely_ passed by the states! Even if the U.S. Congress kicks off the process (as in the only method that has ever successfully been used), it isn't actually "the federal government" doing most of the work but rather the state governments ratifying the amendment. My position would therefore be that the states and the U.S. Congress need to stop being such servants of the sodomite agenda as to ratify an amendment forcing sodomite pseudo-marriage upon all those in the country who don't agree with it.

This would be an excellent topic of discussion for one of you to take on. It's what Christians used to call "the marital debt" between the sexes. If the state considered willful failure to uphold one's end of that a grounds for divorce with cause that would result in punitive action against the offending party, marriage might be safer.

I would argue that marriage may just be private enough that government doesn't need to impose any sanctions on it. I think that is a compelling enough argument. I don't see how a constitutional amendment defining marriage would actually change anyone's beliefs or behavior (other than to force a certain segment underground.)

If the example I gave ever became law, it would not change people's minds at all - it would only force churches underground so as to avoid mandatory compliance with government regulations. Likewise your amendment would only force gay marriage underground. No one will magically stop being gay if the amendment passes!

Nobody wins when government imposes itself into things people are going to do anyway!

I don't see how a constitutional amendment defining marriage would actually change anyone's beliefs or behavior

That's quite simple, and there are several answers. It would force federal judges, if they are going to maintain any pretense of applying the constitution, to _refrain_ from applying the full faith and credit clause to require all states to accept homosexual "marriages." It would force states that presently do have homosexual "marriages" or civil unions (I favor a form of the amendment that includes the phrase "or similar union" as in the constitution of my state of Michigan) recognized by government to stop giving out marriage licenses for such unions, to stop assigning child custody (as in the Lisa Miller case) based on treating such unions as marriages and their dissolution as divorces, and also to stop requiring businessmen to treat homosexual couples as married partners (e.g., in giving out insurance and other benefits). It would force federal judges to _refrain_ from "finding" a "right" to homosexual "marriage" in the 14th amendment or anywhere else in the constitution.

In short, it would have many effects of forcing people to refrain from forcing other people to recognize homosexual couples as "married." That is a large matter, from my perspective. It would also have effects in law--such as on the matter of child custody--that I consider important. Frankly, I don't care if such things aren't important to you. They are to me and to other social conservatives; it was to social conservatives that I addressed the post. You are obviously not a social conservative.

If by "social conservative" you mean someone who wants the government to codify their beliefs at the expense of others, then No, I'm not a social conservative.

OTOH, if by "social conservative" you mean someone who wants the government to stay out of people's private social lives, then Yes, I am a social conservative.

I guess it depends on if "conservative" applies to the size and scope of government OR to its religious bias. I tend to think it is actually supposed to be the former. You are advocating for a larger role for government in our lives, I am advocating for a smaller role. If that's not conservative, so be it.

Um, no, by social conservative I meant, for example, a person who sees the homosexual agenda as a problem, a person who thinks unborn babies shouldn't be legally slaughtered, a person who cares about marriage. Stuff like that. Your "bigger vs. smaller role for government in life" "analysis" is exceedingly shallow. It shows, in fact, that either you have no idea what I'm talking about or you are pretending that you don't. Which makes it rather a waste of time to "dialogue" with you.

OTOH, if by "social conservative" you mean someone who wants the government to stay out of people's private social lives, then Yes, I am a social conservative.

Are you even aware of your own incoherence? Apparently not.

"Private" and "social" don't really sit well right smack up against each other, you know. See, one is having to with one's self, and the other is having to do with other people, especially masses of other people. As in: society. Manifestly, law is supposed to deal with your relationships with other people, especially masses of them. Marriage IS social. It affects not just the 2 people getting married, it affects a whole host of other people.

For the UMPTEENTH TIME, the state CAN'T stay out of the question of "what does marriage mean" because the state cannot stay out of the question of "is A married to B", because many state actions depend on marital or non-marital status. The state CAN stay out of granting marriage licenses. That's a question of administrative policy and mechanics of achieving more essential goals. There is no absolute "conservative" approach to how the state manages the question of who is treated as married and who is treated as not married, no one solution that holds in all places at all times. Conservatives need not live or die on the question. But those who want the state to no longer be in the license business need to explain how the state mopping up legal confusions after-the-fact with so-called marriages that are not marriage by any rational person's definition is going to be better administratively than issuing licenses before-hand.

Um, no, by social conservative I meant, for example, a person who sees the homosexual agenda as a problem, a person who thinks unborn babies shouldn't be legally slaughtered, a person who cares about marriage. Stuff like that.

What it seems like you meant though is "a person who sees the homosexual agenda as a problem and wants the government to step in and quash it", and "a person who cares about marriage and wants the government to step in and define it". (I agree with you on the abortion issue.)

Your "bigger vs. smaller role for government in life" "analysis" is exceedingly shallow.

I'm sorry you feel that way. I've come to this position after much soul searching and after having been a social conservative (by your definition) for quite a long time. I no longer see the government as the answer to our problems - quite the opposite as a matter of fact.

"Private" and "social" don't really sit well right smack up against each other, you know. See, one is having to with one's self, and the other is having to do with other people, especially masses of other people. As in: society. Manifestly, law is supposed to deal with your relationships with other people, especially masses of them. Marriage IS social. It affects not just the 2 people getting married, it affects a whole host of other people.

Well, I was thinking more in terms of the federal government getting involved in our relationships, families, child-rearing etc. I realize that those are "interactions between people", but I tend to think of those things as none of the government's business (aka private).

For the UMPTEENTH TIME, the state CAN'T stay out of the question of "what does marriage mean" because the state cannot stay out of the question of "is A married to B", because many state actions depend on marital or non-marital status.

My conversation with Lydia was specifically about the federal government and a constitutional amendment defining marriage - not about what States do.

My conversation with Lydia was specifically about the federal government and a constitutional amendment defining marriage - not about what States do.

And we have shown how it can't remain solely a state question. There is an unavoidable contradiction in what the states are saying about marriage, that the federal government must "resolve" in deciding how FEDERAL law applies. See above, Jan 15 1:18pm. The state-level incompatibility IS the federal problem.

An amendment to the federal constitution is something that the "States do".

Chucky seems to have an odd idea of how constitutional amendments are passed. As I noted above, he seems to think that anyone who advocates a _particular_ constitutional amendment is actually advocating giving some vague "power" to the "federal government" to "do something" about the general issue and area that the _specific_ amendment concerns, which power might then be misused. That this is a major civics confusion is something I attempted at probably unjustifiable length to explain to him above, but evidently to no avail. Shall I try again? One more time, boys and girls:

If I advocate amendment x to the U.S. Constitution, this does not mean that I am advocating giving "the federal government" some sort of undefined, carte blanche "power" in some policy area. It means I am advocating *that amendment* and only *that amendment*. Amendments to the constitution are not passed as black boxes that could have any content whatseover. They are passed as specific pieces of text with specific content. Therefore, advocating x specific amendment, to be passed by the states, is not handing anybody "a sword" unless the content of that _specific_ amendment grants, by its actual content and wording, some sword-like powers to the federal government. Which the marriage protection amendment we advocate does not do.

Chucky seems to have an odd idea of how...
he seems to think that...
this is a major civics confusion...
I attempted at probably unjustifiable length to explain to him above, but evidently to no avail...
Shall I try again?
One more time, boys and girls:

Thanks for pretending that I'm just ignorant. It's much easier to "win" an argument if you ignore the other side's actual argument and just call them "stupid" (or the equivalent.)

Therefore, advocating x specific amendment, to be passed by the states, is not handing anybody "a sword" unless the content of that _specific_ amendment grants, by its actual content and wording, some sword-like powers to the federal government. Which the marriage protection amendment we advocate does not do.

Then what good is it? What does it accomplish?

Why would anyone advocate for a toothless amendment with no enforceable content?

Why don't just you admit that you want the federal government to step in and stop the homosexual agenda - and that a constitutional amendment is the only way the federal government will have the jurisdiction to do that?

Your amendment would have the effect of immediately making all gay marriages in the USA unconstitutional (even in states where they are currently legal.) You realize that this makes those state sanctioned licenses void don't you? Seems kinda "sword-like" to me!

You really, really, REALLY need to, without further obfuscation, answer my hypothetical in order to understand what the consequences of your amendment will be to those Americans who can currently marry any consenting adult they please in their respective states. (Unless you are afraid of walking a mile in another's shoes?)

Chucky, the federal government has to get involved now because of the full faith and credit clause. When one state tries to maintain that gay marriage doesn't exist and a gay couple moves from another state and sues, the couple will almost assuredly win the right to force the state to recognize them.

Your amendment would have the effect of immediately making all gay marriages in the USA unconstitutional (even in states where they are currently legal.) You realize that this makes those state sanctioned licenses void don't you? Seems kinda "sword-like" to me!

Only in that specific way. It doesn't grant quodlibetal powers from then on out for the government to go on morphing marriage into anything. Not without some further amendment which would overturn that amendment.

Oh, and, yes, you don't get the civics lesson: As Tony and I have both tried to point out until we are weary, the federal government doesn't amend the constitution. Always, by either method, the states do that.

You really, really, REALLY need to, without further obfuscation, answer my hypothetical in order to understand what the consequences of your amendment will be to those Americans who can currently marry any consenting adult they please in their respective states. (Unless you are afraid of walking a mile in another's shoes?)

Oh, _I_ see. This hypothetical wasn't for purposes of arguing that my proposed amendment actually gives the government the power to declare marriage to be between any two consenting adults. (Which it manifestly does not.) No, your hypothetical was supposed to make me _feel_ what the poor, poor homosexual couples would _feel_ if the amendment I favor were passed.

Well, phooey on that. There is such a thing as truth and falsehood about the nature of marriage, and there is nothing wrong with trying to put that into the constitution if there is need to do so. Which several of us, including the very libertarian Mike T., have tried to point out that there is.

At least, there is need from the perspective of people who think that the objective truth is that two men living together and engaging in sexual acts together _can't_ be married, in the nature of the case. I.e. People with any vestige of social conservatism about them.

As I said: My target audience was the social conservative. Social conservatives don't say, "Try to think about how these homosexual couples feel if they aren't declared to be married. Walk a mile in their shoes," blah, blah. Social conservatives think it's a vile lie to declare two men "married" and don't want the government so to declare them. That should be an obvious fact of the so-con vs. social liberal division. Which was why I originally assumed that your continual pushing of that hypothetical was intended to make some different point.

What if the federal government defines marriage as "a union between two consenting adults", then forces churches to recognize and perform gay marriages?

Chucky, you really are off the deep end.

First of all, even taking your hypothetical "the federal federal government defines marriage as 'a union between two consenting adults', " that still wouldn't imply a power in the federal government to cause churches to perform marriages. The federal government - due to DOMA - at the moment considers marriage to be a union between a man and a woman. The feds have not located within that rule (a law passed by Congress and signed by the President) any basis to force any church to perform a marriage ceremony. Causing a church to perform a marriage would be way, WAY beyond simply accepting marriage to be defined as unions between consenting adults. Nothing in your hypothetical provides that the feds would have "taken over" marriage altogether.

Next, I know of at least some churches that would defy such a federal attempt to enforce the homosexual agenda, and I belong to one of them. There would be a hell of lot of a price to pay for feds attempting to enforce this.

But aside from that, whatever is done by law at this point about "defining" marriage, it will do only with the consent of a majority of the states, because there isn't more than 20% of the Republicans who want to take on the issue publicly, and of the Demn Congresscritters who are willing to see gay 'marriage' encoded into law, they see it as an inevitability even without their acting. They aren't going to go out of their way to drum up controversy, unless (like the infamous Pelosi) they come from a district up to its ears in gays.

In any case, an amendment approved by 75% of the states to amend the Constitution taking away from the federal government the right to call marriage anything other than what it has meant for 6000 years is not some kind of federal power. Get your head out of your hairy...sofa and notice something: the feds don't get new powers when the states exercise their right to expressly limit federal power. You give me that amendment, and I'll take whatever that sword cuts, thank you very much.

First of all, even taking your hypothetical "the federal federal government defines marriage as 'a union between two consenting adults', " that still wouldn't imply a power in the federal government to cause churches to perform marriages.

Let me continue the scenario for you... Let's just say that 75% of the states agree and pass a constitutional amendment that defines marriage as 'a union between two consenting adults'. This then becomes the law of the land. That would give any gay couple the right to sue a church that refused to marry them - or to recognize them as married. Once such a lawsuit made it to the Supreme Court (as it inevitably would), the Justices would be forced to rule in favor of the gay couple and against the church - due to the constitutional right of any two consenting adults to freely marry. The church will be found to have violated the constitutional rights of the gay couple and all manner of legislation could be drafted to make the church comply. So yes, it very well could happen.

Constitutional amendments have consequences. I would suspect that a constitutional amendment defining marriage as between a man and a woman would just cause the gay community to become more militant. Of course us Christians don't care about that. We just want our beliefs codified into law so we'll feel better about things. What we want, essentially, is the government to do the job the church should be doing. The church is rapidly losing power over cultural matters and, as we feel the power slip away, we start to flail about looking for some other entity to step in and stop the slide. This country doesn't need the government to codify Christianity into law - what it needs is REVIVAL!

You give me that amendment, and I'll take whatever that sword cuts, thank you very much.

Amen.

Why stop there? Why not add to the amendment that marriage is "for life"? That would stop all those evil divorces! (Of course the spousal murder rate might go up but "phooey on that" - right?) If you have one iota of social conservatism in you - you have to be against divorce! Come on! Let's get this theocracy rolling! Call out the religious police - there's a gay couple! Look - over there - adulterers! Get the whips!

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